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Old September 2, 2010, 07:17 AM   #1
bikerbill
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If we get a 5th left-wing Justice ...

I'm not a lawyer, nor do I play one on TV ... but I always know where to go to get a reasoned opinion on gun rights, so ...

What happens in the event Obama manages to get a 5th liberal on the Supreme Court, and on some black day they reverse Heller and McDonald ... what would that mean to me and my CHL here in Texas? Or in any other state with fairly relaxed gun possession and "Shall Issue" concealed carry laws? Would the states still be free to do as they wish, or would rulings like the ones I suggest above be the end of gun ownership as we know it now? It certainly would in places like Chicago and DC, but what about the states where citizens are trusted to own and carry guns for protection?

I'm guessing life would go on pretty much as it does now ... am I right?

Remember to vote in November!!
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Old September 2, 2010, 09:20 AM   #2
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Old September 2, 2010, 09:36 AM   #3
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There is only Justice Kennedy between us and the destruction of the Second Amendment as we know it and the Tenth Amendment that is fostering Intrastate Gun Rights. The four insane Justices will absolutely destroy us. Fortunately we have four fantastic Justices, Chief Justice Roberts and Justice Thomas, and Justice Scalia and Justice Alito. Very few realize how close we are to destruction. Control of the Senate would be the best we can do until November 2012.
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Old September 2, 2010, 09:55 AM   #4
Brian Pfleuger
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There is a certain danger there but we're farther from that "dooms-day" scenario that it would first appear. Heller and McDonald couldn't have come any later. One swing vote the other way and we'd have lost.

The one thing that most all current, past and potential justices have in common is that it takes a near act of God to overturn precedent. It is not taken lightly, even by those who fundamentally disagree.

The likelihood of precedent being overturned by a 5-4 liberal majority is very low.

On the other hand, the above posters are correct. This is why we never relax. Remember to vote and make your voices heard at every opportunity.

We're in this mess now because "we" did relax. The majority opinion in America has been silent for far too long. There are many issues today that have experienced a bit of a "reawakening" as Americans have realized the true path and goal of the far-left. We must do our level best to keep these issues alive. Gun-Rights are only a small part.
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Old September 2, 2010, 10:10 AM   #5
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Respectfully disagree, if a fifth "bad" justice were added precedent would not matter. All it would take would be a stupid law from an idiotic state like Kalifornia where I live to give the pretext to uphold the law, be it gun ban or otherwise, as "reasonable." Don't fool yourself, the "precedent" is about as good as the paper it is written on to crazy nut-job justices.
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Old September 2, 2010, 10:28 AM   #6
Bartholomew Roberts
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First, I think people are focusing on the wrong issues here. If one of the majority in Heller and McDonald is replaced by President Obama, they would be EXTREMELY unlikely to overturn Heller or McDonald. Such a decision would create too much political fallout.

A much more likely strategy is that they would start "filling in the blanks" on Second Amendment litigation as fast as they can. Remember that Heller and McDonald addressed very narrow, limited issues. All Heller said was that there was an individual right to keep a handgun in the home for self-defense purposes. McDonald says that right applies to the states. Everything else is up for grabs.

An anti-Second Amendment majority of 5 Justices wouldn't need to overturn Heller or McDonald, they could just gut it by making it such a narrow right that it is practically useless. This is basically the same approach that the doctrine of substantive due process through the 14th Amendment used to gut the decision in the Slaughterhouse Cases.

The bright side? We'd be right back to where we were pre-Heller in legal terms. At the end of the day, they still have to have the votes to pass those kinds of laws. From the Miller decision until Heller, the Courts made no effort at all to slow gun control laws - that was slowed, stopped and reversed by citizens working together.
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Old September 2, 2010, 11:13 AM   #7
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As has been said, we absolutely have to stay awake and stay politically active. That involves more than just sitting in front of a computer screen and screeching in gun forums.

It involves more than just going to the polls and voting. Those who are active, know this. It takes sending letters, emails and phone calls. It takes actively getting involved in the campaigns of the politician(s) of your choice.

It also takes money. Donating to your local State Rifle and/or Pistol Association. The NRA. The SAF. These are the folks sponsoring lawsuits to get onerous gun laws overturned, in a State near you.

jmortimer, this "Doom and Gloom" crap continues because of folks just like you. Are you an active member and part of the CalGuns Foundation? The CRPA? The SAF? The NRA? They've got some great cases going on in California, and nationwide.

You are aware that because of the lobbying efforts of the CRPA, NRA and the letters and emails from CalGunners, three onerous bills in your legislature were defeated? This is a first!!

There are 3 separate lawsuits looking to overturn AB962 (the ammo ban). There are 2 lawsuits looking to establish self-defense as "good cause" in obtaining a CCW. Another lawsuit that looks to overturn the safe handgun rooster. The outcome of these 5 cases will directly affect your gun rights in CA. Then there's the Nordyke case, which will establish what "sensitive places" mean in, and throughout the entire 9th Circuit. What are you doing to help?

That leaves 14 other cases, nationwide, that will indirectly affect your gun rights. What are you doing to help?

There are as many other cases, waiting in the wings, for the outcome of these 20 cases. And this is what many of you don't seem to understand.

If even half of these cases come out in our favor, they will have established the types of precedent that even the Supreme Court will not dare to overturn. This, regardless of how many "liberals" are placed on the Court. That's how precedent really works. It's not just what the Supreme Court does, it is what consensus the lower courts build. It's how the NAACP won Brown v. Board of Education.

That's the roadmap. It won't take as long as the Civil Rights movement (of the 50's and 60's) took. They had a plan, but didn't have a roadmap. We not only have a plan, we have their roadmap.

To directly answer the OP's question then:

If the Heller Five can hang in there for another 5 years, it will be too late for anyone to change what has happened. The gun rights landscape will have been utterly changed.
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Old September 2, 2010, 12:30 PM   #8
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There is a certain danger there but we're farther from that "dooms-day" scenario that it would first appear. Heller and McDonald couldn't have come any later. One swing vote the other way and we'd have lost.
I agree that the timing was vitally important. However, Heller and McDonald were not the beginning. They represent a consensus that's been built over the last two decades to change the minds of politicians and academics regarding the meaning of the 2nd Amendment.

In 1990, you'd have been hard-pressed to find any academic or lawyer who believed the 2nd Amendment protected an individual right. It would have been folly to bring a case like Heller, and if it had been heard then, I shudder to think what precedent would have been set.

It wasn't the right time then; it is now.

Quote:
If one of the majority in Heller and McDonald is replaced by President Obama, they would be EXTREMELY unlikely to overturn Heller or McDonald. Such a decision would create too much political fallout.
They'd have to do some real scrambling to explain how they abruptly dumped a precedent set only a year or so before. While we saw that to some extent in Citizens United, it was done in the interest of protecting civil rights and not government interest.

Furthermore, how would someone bring a challenge to the Supreme Court that would lead to a decision overturning Heller or McDonald? I can't imagine a scenario like that.

Irregardless of the Supreme Court at this point, it's the district and Circuit courts where the issue will continue to play out. Many of our battles are to take place in the legislature, where we have also made great gains.

(I'd like to point out that the spell-check software does not see "irregardless" as a misspelling.)
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Old September 2, 2010, 12:41 PM   #9
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Don't forget the polls

Absolutely vote every time but also ... don't forget the polls. I always take them and for both parties. They help steer whoever gets into office. They usually have line items like what is most important to you ... The economy, taxes, jobs, education ... NEVER forget to write in the 2nd amendment and gun rights as a very high priority. I do every year at the state fair. The Rep, Dem, and Independent booths are all there as well as many non-partisan groups. I hit them all, take the polls, and talk to the representatives and let them know where I stand. No one listens better than in an election year!
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Old September 2, 2010, 12:50 PM   #10
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If it means getting the 1st and 4th amendment being reinstated, I think it'd be a good thing.
If it meant that corporations no longer had more rights than citizens, I think it'd be a good thing.

The conservatives on the court have made bad law. That they have given lip service to the 2nd doesn't take away from that.
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Old September 2, 2010, 01:05 PM   #11
Gary L. Griffiths
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The one thing that most all current, past and potential justices have in common is that it takes a near act of God to overturn precedent. It is not taken lightly, even by those who fundamentally disagree.
For the most part, you're correct. However, Justice Ginsberg has been quoted as having stated that a future, "wiser" court would overturn the bad precedent of Heller. I'm not sure all of the libs on the court would go along with that, but I can see Heller being limited, essentially, to the right to possess some type of handgun in your home, period.

November is important. Don't let anybody tell you it isn't, and don't let anybody talk you out of voting!
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Old September 2, 2010, 01:20 PM   #12
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Al Norris - I cannot agree that my opinion is "crap." It is fact. I belong to NRA, vote, donate $$$, and call/contact legislature and Governor. As for joining a state based organization you make a good point. The quote by Justice Ginsberg cited above makes my point and should not be dismissed out of hand. If you lived here and practiced law here or otherwise you may have a different opinion. Love the disrepect.
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Old September 2, 2010, 02:55 PM   #13
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The quote by Ginsberg makes a personal point... Hers. To imply that her personal opinion is shared by any other Justice is, well, foolhardy.

jmortimer, your "Doom and Gloom" mantra is shared by many who are not Californians. In light of current events, I call them all crap. Is that disrespectful? No more than those of you wishing to rain on our parade.

Make you a deal. You quit moaning and groaning abut the light at the end of the tunnel being an oncoming train, and I'll quit harping about your negativity (yours alone, not anyone else's). In other words, you want to be negative about what's happening on the 2A front? Back it up with facts. Because I can sure back my opinions up.
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Old September 2, 2010, 03:32 PM   #14
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Thanks for all the responses ... I guess I didn't make my original question clear enough ... Before Heller and McDonald, Texas issued me a CHL and lets me have all the guns I want ... my question is -- if Heller and McDonald were overturned, would the authority for gun law revert to the states and, at least in the case of Texas, would things simply be as they were before the Supremes ruled, barring a leftward shift in the statehouse?

I'm glad, by the way, to hear that folks don't see it likely that a later court would overturn precedent.
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Old September 2, 2010, 05:07 PM   #15
Brian Pfleuger
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Quote:
Thanks for all the responses ... I guess I didn't make my original question clear enough ... Before Heller and McDonald, Texas issued me a CHL and lets me have all the guns I want ... my question is -- if Heller and McDonald were overturned, would the authority for gun law revert to the states and, at least in the case of Texas, would things simply be as they were before the Supremes ruled, barring a leftward shift in the statehouse?
If Heller and McDonald were overturned it would be catastrophic. Yes, the "authority" would be returned to the states. They would essentially be authorized to completely ban entire classes of firearms, or even firearms in whole.

It would mean that "the right to keep and bear arms" was not classified as a fundamental right and would be subject to whatever restrictions any given set of lawmakers could conjure. They would be able to ban firearms just as easily as they can ban fireworks.
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Old September 2, 2010, 07:25 PM   #16
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The one thing that most all current, past and potential justices have in common is that it takes a near act of God to overturn precedent. It is not taken lightly, even by those who fundamentally disagree.
While that is normally true, let us not forget for a moment that in MacDonald we had a dissenting opinion that very clearly stated they (the undersigned dissenting justices) believed Heller was wrong. They would have used MacDonald to overturn Heller in a heartbeat if they could have mustered a fifth vote.
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Old September 2, 2010, 07:27 PM   #17
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The whole matter, from guns to healthcare to the economy, to everything, hinges on what govt can do (legally) and what it DOES do.

The country is in a big flap right now, because of an issue where govt did something they obviously felt they had the authority to do, in spite of the will of the people against it.

I agree, IF Heller and MacDonald do get overturned by a future court, then we are back to where we were before they were decided. No worse. As long as we have the political will, and the legal ability to make our opinions known, to the Feds and to the states, we still have a chance.

House to house raids won't start the day after Heller gets overturned, (assuming it did), so we will have time to act.
How effective that would be, of course, depends on what we bring to it.
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Old September 2, 2010, 07:41 PM   #18
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Respectfully disagree, if a fifth "bad" justice were added precedent would not matter.
The power of the court is largely wrapped up in the permanence of its rulings. If the court doesn't hold precedence in high regard then their rulings, in turn, will not be held in high regard.

A ruling isn't set in stone but a court, even a court unfriendly to past rulings, has a vested interest in reaffirming the permanence of past rulings because by doing so they are reinforcing the permanence of their own rulings and therefore insuring that the power they wield is not fleeting.

It's one of those situations where self-interest, ego and the hunger for power all work together to prevent the legal system from being slammed back and forth from left to right by changing laws as the opinion of the court changes. A pretty good system.
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Old September 2, 2010, 09:24 PM   #19
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It would mean that "the right to keep and bear arms" was not classified as a fundamental right and would be subject to whatever restrictions any given set of lawmakers could conjure.
Could that even be done? I can't recall that there has never been a case where the Court has defined a right as "fundamental," then recanted. Such a reversal would call into question the Court's competence and authority.

I can't even imagine what kind of challenge could be brought to get such a result. I don't see any Justice, regardless of ideology, writing an opinion overturning the status of a fundamental right.

The biggest victory was getting the word "fundamental" paired with the RKBA. That one word guarantees a higher level of protection, and it opens the gates to challenges to numerous ordinances and bad laws.
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Old September 2, 2010, 09:38 PM   #20
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I think the far more likely "doomsday" scenario would be for the court to explicitly adopt a lower level of scrutiny, either rational basis or some intermediate level of review. While the majority opinions in Heller and McDonald contain some good language that seems to favor a high level of scrutiny, they expressly declined to rule on the standard. Thus, a new majority could essentially gut the 2A of any real meaning by rejecting strict scrutiny.
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Old September 2, 2010, 11:24 PM   #21
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While the majority opinions in Heller and McDonald contain some good language that seems to favor a high level of scrutiny, they expressly declined to rule on the standard.
The case law hasn't been built yet, but again, they'd be flying in the face of precedent. Rights deemed fundamental are supposed to trigger strict scrutiny. It would take a great deal of wrangling and a fairly tortured line of argument to single out the 2nd Amendment as being undeserving of the same treatment.

If I were a liberal Justice, I'd seriously worry about such a thing. If the level of scrutiny can be abridged for one freedom, then the same goes for speech, privacy and worship.
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Old September 3, 2010, 05:43 AM   #22
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A good question to ask here is, do you really want states to be able to do as they wish?
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Old September 3, 2010, 07:01 AM   #23
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The antis have made it pretty clear what their plans will be if they get the majority. They will make the "fundamental" right limited to the scope in Heller (handguns inside the home) and apply an "intermediate scrutiny" that in reality will look a lot more like rational basis.

This is one reason why there are something like 14 different critical gun cases going right now - our side is trying to get the courts to flesh out as many of these rules as possible while the Heller majority is still on the Supreme Court.

Which is all the more reason that organizations like SAF and the NRA Civil Defense Fund can use a donation of $5 or $10 if you can spare it. The legal fees to get to the Supreme Court are tremendous and we have a lot of ground to cover - the more dedicated RKBA lawyers we can put on the task, the better it is for us; but the problem is that Constitutional Second Amendment litigation isn't normally a big enough issue to support a lot of lawyers and has a fairly limited shelf life - so mostly people do it because they believe in it. But even when you believe in it, you still have to do something else on the side to feed your family and actually see them once in awhile. When it comes time to crank out a 30-page amicus brief in response to a point the antis raise, there just aren't that many people who can drop their normal work and family life and work for free for a month to get a good product out.
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Old September 5, 2010, 02:15 PM   #24
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I feel out of place

I vote based upon multiple aspects of a candidate. The extreme left wing loonies scare the crap out of me, but so do the far right wing nut-jobs, especially some of the candidates that come from the Tea Party. Some of the same Tea Party people that believe in states having most of the authority cringe at having states determine gun rights, which is like going to a buffet and choosing to have a state disallow same sex marriage but there's no way I'm getting the "let the state determine gun laws". I'll vote for the candidate that best meets my needs as a whole, whether that'll be Dems, Reps, or Independents, but to base your entire voting on one issue is asking for trouble. How many bad politicians have made it in for being most "pro-life" and done nothing while being in office but could mess a lot of other things up.

The prosthelytizing of "doomsday" is the very reason why guns and ammo are so damn high. I'm sure the gun manufacturers, gun shops, and ammo makers are hoping Obama and Pelosi stay in office so that they can keep gouging people with their prices or because of how many people really believe in the "doomsday" and are buying everything they can, because of the fear that is spread by people freaking out.
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Old September 5, 2010, 05:06 PM   #25
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The SCOTUS reverses itself and jettison precedents regularly. 1986-Bowers vs. Hardwick, SCOTUS rules 5-4 that states have the right to outlaw private homosexual acts. 2003-Lawrence vs. Texas-SCOTUS rules homosexuality is a
constitutionally protected freedom. Sandra Day O'connor voted with the majority both times.
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