Feinstein, Gorsuch and Heller

[zukiphile]

Unfortunately, some of the language in Justice Scalia's opinion (which, I acknowledge, was almost certainly included in order to keep Kennedy on board) was not helpful. First, while I fully understand that the question before the court was "possession" of a functional handgun within the home, the decision was written in such aw ay that it has allowed lower courts to claim they are adhering to Heller even while they render decisions that make "bearing" out to be a right separate and distinct from "keeping." In fact, the language of the 2A is such that there is only ONE right, and it is A right that encompasses two actions.

Secondly, there was that execreble reference to "presumptively lawful" regulations, which the lower courts have been citing as if the SCOTUS had ruled that all existing gun control regulations are lawful and constitutional. That's not what Mr. Scalia meant -- what he meant was "we're not talking about those laws today, so we'll presume they are lawful until we get to examine them down the road."

Emphasis added.

The portions you reference are misused by courts giving a rationale for restrictions of the right; that is a flaw in the rationale of those decisions rather than Heller itself. There is no language so clear that it can't be misinterpreted by someone intent on misinterpreting it.

When speculating about what language may have been necessary to form a majority opinion (speculation that strikes me as completely plausible) we shouldn't look right past the central trait of the decision. It is a majority decision. I know Scalia signed some brilliant dissents, but I am happy he didn't get another of those chances in Heller.

I am certain that if the right involved were to be exclusively interpreted by Zuk and AB it would have a clarity and breadth it doesn't currently enjoy. Insisting on that degree of clarity and breadth a decade ago would have put the Bush admin on the other side of the issue and might have gotten only Thomas and Scalia, maybe Alito.

It's important to place a smart Federalist in each slot that opens, and to have the political apparatus in the exec and Senate to make that happen. Once that foundation is laid there will need to be additional litigation.

I see the issue outliving us both.

[5whiskey]

Not to bang the same drum endlessly but given the ability of Heller and the Scalia prose to produce such twisted interpretations (from our viewpoint) suggests to me that the prose failed if its purpose was to protect aspects of the RKBA. Was Scalia trying to compromise with anti EBR sentiments to get the votes or was he enamored with his own erudition such that he wrote convoluted passages that are biting us now.

To be fair, Judge Scalia wrote in a manner consistent with how judges typically compose opinions. Read enough appeals court and Scotus opinions and you will quickly realize that they are all wordy and round about. One paragraph affirms, in typical judge roundabout way, that the RKBA is tied to the need to have a militia and to use those privately owned arms for militia service. This would almost certainly mean an AWB would be unconstitutional since those bans target semi auto versions of the very rifle issued to our armed forces. One sentence, which was a rhetorical proposal, from this paragraph has been taken out of context by a few of the most anti-gun people on earth. Similar things have certainly happened before.

Secondly, there was that execreble reference to "presumptively lawful" regulations, which the lower courts have been citing as if the SCOTUS had ruled that all existing gun control regulations are lawful and constitutional. That's not what Mr. Scalia meant -- what he meant was "we're not talking about those laws today, so we'll presume they are lawful until we get to examine them down the road."

As I'm sure most here recognize, this is a common tactic used by SCOTUS. The goal is to not make a decision on all aspects of a case so that vast swaths of statutory law isn't inadvertently affected by an overly technical interpretation of an opinion. In our case we would like vast swaths of statutory gun law to be nullified. Trust me when I say that this could work as double edged sword and work against us in other decisions. So... The SCOTUS tends to only rule on the specific matter at hand. In the case of Scalia, he actually went further than normal outside of he specific question (owning a pistol) by suggesting that an AR15 is intimately tied to the RKBA and the need for militia (18th century need, anyway).

[Aguila Blanca]

Originally Posted by zukiphile

I see the issue outliving us both.

In my case, I have no doubt that this is correct.

[natman]

To be fair, Judge Scalia wrote in a manner consistent with how judges typically compose opinions. Read enough appeals court and Scotus opinions and you will quickly realize that they are all wordy and round about. One paragraph affirms, in typical judge roundabout way, that the RKBA is tied to the need to have a militia and to use those privately owned arms for militia service. This would almost certainly mean an AWB would be unconstitutional since those bans target semi auto versions of the very rifle issued to our armed forces. One sentence, which was a rhetorical proposal, from this paragraph has been taken out of context by a few of the most anti-gun people on earth.

Absolutely right. Go to post #17 and compare the 4th's decision with what Scalia actually wrote. Then read the paragraphs from Heller that the 4th completely ignored because they disagreed with the result they wanted. The problem isn't Scalia's writing, it's the dishonesty of the judges that wrote the 4th's opinion. Anyone willing to distort the facts that much would find a way to support the position they wanted regardless.

[Glenn E. Meyer]

Ah - that's what I've been saying, the judges decide on the basis of their ideology and then look for phrases and precedents that support their view. These might be very tortured but that's what's been happening in the EBR, mag limit cases.

Thus, again - the prose left this vulnerability. Sorry to repeat myself, but that's the way I call it. The theoretical legal discussions are great but if the judicial behaviors are negative - that is not good.

Also, the assumption that a future court will overturn these lower decisions is not a good one, IMHO.

[zukiphile]

Originally Posted by Glenn E Meyer

Also, the assumption that a future court will overturn these lower decisions is not a good one, IMHO.

One need not simply assume that a Sup Ct in the future would define a right more broadly in order to fight the political battle necessary to get a court that would define the right more broadly.

Between 1986 and 2003, the composition of the court changed to that Bowers v. Hardwick was overturned by Lawrence v. Texas. I don't think the philosophical victors in Lawrence simply assumed that they would prevail one day, but instead did the work of laying the foundation that would hand it to them.

[Glenn E. Meyer]

I understand that. In Lawerence, there was a societal change for keeping the government out of the bedrooms of consenting adults. In other cases, where restrictions were overturned (like Brown v. Topeka) there was a societal shift also.

So having the ground work in place would be a good thing. So:

1. Is having these negative lower court decisions sitting a ground work for a better decision?

2. Is there a societal shift such that a future SCOTUS will undo the past injustices of the lowers courts? Or do the lower court decisions reinforce many in society to say that these restrictions make sense to them?

[zukiphile]

Originally Posted by Glenn E Meyer

I understand that. In Lawerence, there was a societal change for keeping the government out of the bedrooms of consenting adults. In other cases, where restrictions were overturned (like Brown v. Topeka) there was a societal shift also.

So having the ground work in place would be a good thing. So:

1. Is having these negative lower court decisions sitting a ground [I am reading this as "sitting around"] work for a better decision?

2. Is there a societal shift such that a future SCOTUS will undo the past injustices of the lowers courts? Or do the lower court decisions reinforce many in society to say that these restrictions make sense to them?

I don't believe your second question represents a dichotomy.

Plessy surely reinforced the position of those to whom it made sense. Plessy didn't hamper the court in Brown. Bowers was vindication those who found no right to sodomy in the COTUS, but that was no restraint on the majority in Lawrence.

I do believe there is a cultural shift from 30 and forty years ago when the loudest and most strident voices in the public policy room dismissed the very idea of an individual right as Bircher lunacy. In many places, public culture is less alarmed by the idea of non-police carry. Those changes aren't trivial.

As to your first question, adverse decisions in lower courts don't help except to highlight the need to address court composition through the political process, the same process that has brought forth Gorsuch.

Allow an exercise in best case scenarios. If Gorsuch is confirmed (how happy are we that he is the nominee under discussion rather than Garland), and Kennedy, Ginsberg and Thomas are all replaced with people of the same general view as Gorsuch or Thomas, maybe the next 2d Am. case won't be 5-4 and we would see more of the sort of rebuke issued in Caetano where states attempt prohibitions of arms in common use.

[natman]

Ah - that's what I've been saying, the judges decide on the basis of their ideology and then look for phrases and precedents that support their view. These might be very tortured but that's what's been happening in the EBR, mag limit cases.

Thus, again - the prose left this vulnerability. Sorry to repeat myself, but that's the way I call it.

The 4th took a clearly hypothetical premise that was only mentioned in order to refute it in the very next sentence and claimed it was the meaning of the decision. It's pretty hard to write any legal opinion that will stand up to that sort of dishonesty.

Also, the assumption that a future court will overturn these lower decisions is not a good one, IMHO.

It wouldn't surprise me if SCOTUS sends this back for reconsideration without even hearing the case via a per curiam opinion, just as they did when the Massachusetts Supreme Court tried to use the "only muzzleloaders" argument in Caetano v. Massachusetts (2015).

No matter how an individual Supreme Court justice may feel about the issue at hand, they simply can't allow lower courts to dump on Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.

[Loosedhorse]

Justice Scalia also wrote that, ‘Weapons that are more useful in military service, M-16 rifles and the like, may be banned without infringing on the Second Amendment.’

This transcription is wrong. Feinstein actually said, "...Justice Scalia also wrote that, quote, weapons that are most useful in military service, M-16 rifles and the like, may be banned, close quote, without infringing on the Second Amendment..."

As Frank Ettin pointed out in post #5, the quote that Feinstein there took from Heller was not, as she presented it, a conclusion of the majority, but was instead part of a conditional clause (she omitted the "if"). So, Feinstein misrepresented Heller.

I think that it is likely that Scalia wrote the opinion as he did because he was a precise writer and he wished to make it clear that the majority was limiting the scope of their decision to the laws challenged in case at hand (the DC handgun ban and the DC ban on keeping guns at home if they are unlocked and functional). We can speculate as to whether such an explicit limiting of scope was required by one of the other justices, to get him to sign on to the majority.

The majority in Heller does seem to indicate that certain firearms can be subjected to the tax and registry requirements of the NFA:

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

It is unclear to me whether, in accepting the current restrictions on SBSs, the majority also implied that the current ban on machineguns, via the Hughes Amendment's closing of the machinegun registry, was also constitutional.

True: the opinion seems to recognize a Miller-imposed limitation of 2nd Amendment protections on arms:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Still, I note that the cited "historical tradition" concerned banning carry, not ownership; for example:

The offence of riding or going armed, with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land

Source: http://www.bc.edu/bc_org/avp/cas/com...lackstone.html

So one may well consider whether the 2nd Amendment does indeed protect the ownership of machineguns, even supposing that they are to be considered “dangerous and unusual weapons.”

[LogicMan]

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.

Scalia was wrong on this. If that was the case, nobody would consider the idea of invading Iran nuts. The idea isn't considered nuts because of Iran's military, it is considered nuts because the country is 80 million people. People with small arms can wreak utter havoc on a professional military armed with bombers and tanks, because there are only so many places you can bomb and only so many places you can send the tanks. Your infantry will get shot at from all different directions and your non-combat arms soldiers who handle supply issues and such, yikes.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Another bad piece of reasoning on his/their part, because if the weapons are not typically possessed by law-abiding citizens because the government went and banned them arbitrarily, well that's some circular logic. Just ban the weapon, it becomes rarer, than if/when the issue makes it to court, the court upholds the ban because the weapons aren't commonly possessed. Well of course not, because they were banned years back.

[LogicMan]

Originally Posted by Glenn E. Mayer

Not being a lawyer, reading Frank's quotes (thank you, Frank), it seems to me that the language does allow a category of dangerous weapons and they can be banned without destroying the Second Amendment.

The only difference between an AR-15 and M-16 in significant function is the full auto capacity. AR-15s are very dangerous weapons even if only semiauto.

Is this not the logic that is used to support the state level AWB and mag capacity bans?

AR-15s are no more dangerous than numerous other firearms, as they all have different capabilities. Remington 700 bolt-action rifles are very powerful and allow one to shoot from a great distance with great accuracy. They are used as sniper rifles. Hand guns are easily concealable, yet great tools for murder and/or even mass murder. The gangs in Chicago aren't murdering one another and innocents with rifles. 12 gauge shotguns are hugely destructive. And so forth. You can label any group of firearm as "very dangerous."

The AWBs use the phony "military-style features" claim for their "logic."

I really don't see (naive me, willing to be corrected) how Scalia's language forbids such bans and in fact, it enables them?

Diane was pushing that point. I don't see a forseeable SCOTUS knocking down such state level laws.

It is my opinion that fighting this at SCOTUS is fun but a played out strategy. It will only bring losses or refusal to take cases that let the state level bans stand as per Circuit decisions.

If the Republicans would stop spinning in circles, they would move to proactive legislation that would ban State bans as they are defending the BOR. They would move on national reciprocity. Just trying to undo things like VA rules are useful but they cannot be defensive all the time and claim credit for being great defenders of the 2nd Amend. It is not enough. They need to expand rights.

I may be mistaken, but I don't think that the Federal government can pass legislation that would ban state bans. The argument would be that that is a violation of states rights, and the same courts that have upheld the AWBs bans and magazine capacity limitations would strike down such a law as unconstitutional.

National reciprocity may also, if passed, get struck down as unconstitutional as that too may well be a violation of states rights.

[Glenn E. Meyer]

If you view the RKBA as a right guaranteed by the BOR and thus the Constitution at a level determined federally, states could not constrain it.

State discriminatory laws on race and voting were struck down as they violated basic rights. States trying to impose their religious views were struck down federally. States trying to define marriage according to race were struck down.

Thus, I see no states rights argument for limiting the RKBA beyond a Federal limit. The 2nd supposedly applies to the states now.

[Aguila Blanca]

Originally Posted by LogicMan

I may be mistaken, but I don't think that the Federal government can pass legislation that would ban state bans. The argument would be that that is a violation of states rights, and the same courts that have upheld the AWBs bans and magazine capacity limitations would strike down such a law as unconstitutional.

National reciprocity may also, if passed, get struck down as unconstitutional as that too may well be a violation of states rights.

The feds can assert jurisdiction by virtue of the interstate commerce clause. Most firearms and most ammunition pass over multiple state lines before being sold, which allows the feds to preempt legislation based on the fact that the items are in interstate commerce. As to national reciprocity, there are multiple prongs on which the feds can assert jurisdiction. First, of course, is the Second Amendment to the federal Constitution. Then there's the fact that the guns and the ammo are in interstate commerce. And then there's the fact that when a person travels to another state, he or she almost certainly spends some money there so the person is also engaging in interstate commerce.

If the feds can argue (as they have) that they have jurisdiction over marijuana that was grown, sold, and smoked entirely within one state on the grounds that by growing, selling, and smoking that weed the pricipals affected interstate commerce by NOT importing the marijuana from another state, they can certainly assert jurisdiction over things that really ARE in interstate commerce.

[LogicMan]

Originally Posted by Glenn E. Mayer"

If you view the RKBA as a right guaranteed by the BOR and thus the Constitution at a level determined federally, states could not constrain it.

State discriminatory laws on race and voting were struck down as they violated basic rights. States trying to impose their religious views were struck down federally. States trying to define marriage according to race were struck down.

Thus, I see no states rights argument for limiting the RKBA beyond a Federal limit. The 2nd supposedly applies to the states now.

Yes, but all those laws were struck down by courts. The courts won't strike down such state gun laws, so you were saying about the Congress passing a law to do so. I'm saying I don't see how such a law wouldn't be considered an infringement on states' rights, and why the anti-gun courts wouldn't also strike down such a law.

[LogicMan]

The feds can assert jurisdiction by virtue of the interstate commerce clause. Most firearms and most ammunition pass over multiple state lines before being sold, which allows the feds to preempt legislation based on the fact that the items are in interstate commerce. As to national reciprocity, there are multiple prongs on which the feds can assert jurisdiction. First, of course, is the Second Amendment to the federal Constitution. Then there's the fact that the guns and the ammo are in interstate commerce. And then there's the fact that when a person travels to another state, he or she almost certainly spends some money there so the person is also engaging in interstate commerce.

If the feds can argue (as they have) that they have jurisdiction over marijuana that was grown, sold, and smoked entirely within one state on the grounds that by growing, selling, and smoking that weed the pricipals affected interstate commerce by NOT importing the marijuana from another state, they can certainly assert jurisdiction over things that really ARE in interstate commerce.

It would be great if such legislation could get passed that would outlaw the state bans, but I think it would be struck down by the lefty courts.

[Glenn E. Meyer]

From Wikipedia on the Voting Rights Act:

The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States that prohibits racial discrimination in voting.[7][8] It was signed into law by President Lyndon B. Johnson during the height of the Civil Rights Movement on August 6, 1965, and Congress later amended the Act five times to expand its protections.[7] Designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act secured voting rights for racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is considered to be the most effective piece of civil rights legislation ever enacted in the country.[9]

So legislation was based on protecting a right defined in the BOR. So why can't a similar logic be used for eliminating unconstitutional gun restrictions that are contrary to the 2nd Amend.

If the lower courts struck the law down on a states rights argument, they would undercut all the rights protecting decisions that they agree with.

[Loosedhorse]

Originally Posted by LogicMan

if the weapons are not typically possessed by law-abiding citizens because the government went and banned them arbitrarily, well that's some circular logic.

It would be.

However, before the time the NFA was passed, there were no federal restrictions on "NFA firearms"--machineguns, short-barreled shotguns, etc. Therefore if NFA firearms were indeed at that time--1934--already "not typically possessed by law-abiding citizens for lawful purposes," then under the Heller rule they would be unprotected. And since their "not typically possessed[, etc.]" status was not caused by some previous restriction, there is no circularity.

The real problem comes with newly invented arms. Any innovative weapon--revolvers, fixed-ammunition firearms, lever-actions, semi-autos, etc.--will naturally be "not typically possessed" at the time of their introduction. So, if the government simply makes it a practice to restrict new weapons as soon as they're invented, that seems not to violate Heller.

There is a way out of that circularity:

Another external source of evidence about the scope of the right to defensive arms lies in the revealed judgment of American local and state governments about this question. This judgment is most reliably expressed, not in the public statements of governments, nor in the restrictions they may seek to impose upon citizens who do not work for the government, but in the defensive equipment that they choose to issue to their own agents: ordinary patrol officers in police departments...

As Kopel notes, under the police criterion, “quality handguns,” including selfloading pistols, “would lie at the core” of such a Second Amendment, as would the “ordinary shotguns and rifles” routinely carried in patrol cars.

Source: O'Shea, MP: "The Right to Defensive Arms after District of Columbia v. Heller", WVLR 349 (2009)
https://poseidon01.ssrn.com/delivery...100006&EXT=pdf

[LogicMan]

Originally Posted by Glenn E. Mayer

So legislation was based on protecting a right defined in the BOR. So why can't a similar logic be used for eliminating unconstitutional gun restrictions that are contrary to the 2nd Amend.

If the lower courts struck the law down on a states rights argument, they would undercut all the rights protecting decisions that they agree with.

That's a good point, had forgotten about the VRA.

[Glenn E. Meyer]

All in all, I go back to my view that waiting for the SCOTUS isn't going to work. Why not try a legislative attack on gun control. Currently, the progun politicians are strictly defensive for the most part. Vote for us as it could be worse.

Proactive bills are left to languish as they babble about crap.

[LogicMan]

Personally, I do not think that the logic of regarding the Second Amendment as applying to only weapons typically possessed by law-abiding citizens as being logical, as there are plenty of weapons that are clearly "arms" but yet not typically possessed, for example battle axes, war hammers, swords, shields, bow and arrow, crossbows, etc...

[LogicMan]

All in all, I go back to my view that waiting for the SCOTUS isn't going to work. Why not try a legislative attack on gun control. Currently, the progun politicians are strictly defensive for the most part. Vote for us as it could be worse.

Proactive bills are left to languish as they babble about crap.

I could imagine the courts striking down such legislation as well though, saying that it only applied in enforcing Heller and the Second Amendment for things like hand guns and bolt-action rifles, but "assault weapons" it does not apply to, and thus was un-Constitutional, whereas the laws the Voting Rights Act applied to were all protected by the 14th and 15th amendments

But yes, we need a gun rights offense at the federal level, not defense. The problem is unfortunately, too many of the pro-gun politicians don't know much about the subject to adequately defend it

[Glenn E. Meyer]

Well, sadly that's true. We saw idiotic antigun congress critters denouncing things that go up! Then a candidate for Secretary of Education supports guns in schools in places where there are grizzly bears. That really helped.

The collective intelligence from all of the Congress isn't really that impressive (on all sides).

[lefteye]

We saw idiotic antigun congress critters denouncing things that go up!

By the way - Is she still in Congress?

[5whiskey]

All in all, I go back to my view that waiting for the SCOTUS isn't going to work. Why not try a legislative attack on gun control. Currently, the progun politicians are strictly defensive for the most part. Vote for us as it could be worse.

Honestly part of that Onus is on us. If Gorsuch is seated, and Trump gets one more SCOTUS nomination on Ginsburgs seat, AND he nominates someone with 2A views more favorable than Kennedy... then we should absolutely appeal some of California's asinine laws. Start with a small one as a test case, obviously.

And I realize that is a lot of "ifs" but honestly Heller was gutsy. Lot's of Pro 2A folks didn't fully support it in the beginning as they feared a ruling negative to us. If states keep piling on the stupid anti-gun legislation, I believe we need to just go for it. See if the court grant a writ, and then see what they decide.

You are right, though. I see nothing wrong in trying legislative means if we can't get court rulings to go our way in a reasonable time. The SCOTUS is picky on granting certiorari on gun rights as it is. I think they would rather not touch it if they can help it, but if there is a split between circuits and enough plaintiffs file briefs then they can't really avoid it but so long.