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Old May 13, 2018, 11:58 AM   #1
Glenn E. Meyer
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California cases and Heller

https://reason.com/archives/2018/05/...e-quietly-elim

Two cases came out negatively for the RKBA in California. The details are discussed in the article and it points out how decisions are politically motivated for some judges and the Heller language again (whether you think so or not) contained prose that can be used as rationales for gun control (whether you think the decision was brilliant or not).
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Old May 13, 2018, 12:44 PM   #2
Aguila Blanca
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Ayup. Here's the whole article, in two paragraphs:

Quote:
In theory, after the Supreme Court's Heller decision in 2008, the Second Amendment was supposed to mean something—it was supposed to protect a core fundamental right as important as the freedom to speak or to worship. Just as the First Amendment was the uniform law of the land across the nation, the theory went, the Second Amendment would be as well.

But, alas, that was not political reality. California judges, especially in cities like San Francisco and Los Angeles, have creatively interpreted the Heller decision into a constitutional near-nullity. The U.S. Court of Appeals for the Ninth Circuit has upheld those decisions. And the U.S. Supreme Court, has abdicated its responsibility by letting lower courts get away with it.
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Old May 13, 2018, 12:45 PM   #3
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i'm not surprised that a federal judge blessed the CA Assault Weapons Control Act.

i ain't a lawyer nor do i play one on TV. However, i am somewhat adept at reading rather plain English.

i will say again: Heller was not a resounding affirmation of our Second Amendment rights.

From the Heller decision:

Quote:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose.

See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333.

For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues.

See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884).

Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms

Cite as: 554 U. S. ____ (2008) 55
Opinion of the Court
arms.26

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.”

See 4 Blackstone 148–149 (1769); 3 B. Wilson,
Works of the Honourable James Wilson 79 (1804); J.
Dunlap, The New-York Justice 8 (1815); C. Humphreys, A
Compendium of the Common Law in Force in Kentucky
482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable
Misdemeanors 271–272 (1831); H. Stephen, Summary
of the

Last edited by thallub; May 13, 2018 at 01:12 PM.
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Old May 13, 2018, 05:53 PM   #4
Aguila Blanca
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I think by now we have all seen that Heller was fatally flawed, most likely by Mr. Scalia's need to keep Justice Kennedy on board with the majority. It doesn't help that a corrupt and ideology-driven lower court system has no compunctions about cherry picking Heller in order to use it to promote, rather than limit, gun control. What's unfortunate is that the SCOTUS allows this to happen, but the reality is that it's unlikely that Justice Kennedy would join the pro-2A side on any future gun control cases, and I believe this is why so many cases that seem ripe for the SCOTUS have been denied cert -- neither side wants to risk rocking the boat. If Kennedy will retire and Trump gets to name another "originalist," "strict constructionist" justice, there's a chance we may see more pro-2A action at the SCOTUS level.

Of course, Roberts is a snake in the grass, so even better would be if Ruth Bader-Ginsberg would also retire, but because of her hatred for Trump and the 2A (and the Constitution in general), that's not likely to happen.

It could be argued that all references to Blackstone should be ignored. Blackstone was English, and the Constitution (and the Bill of Rights) was written to correct certain things our forefathers found wrong or lacking under English law.
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Old May 13, 2018, 10:01 PM   #5
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Quote:
... there's a chance we may see more pro-2A action at the SCOTUS level.
Patience.
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Old May 14, 2018, 08:45 AM   #6
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Another month having passed, we might as well have the conversation again.

Quote:
Originally Posted by Thallub
i ain't a lawyer nor do i play one on TV. However, i am somewhat adept at reading rather plain English.

i will say again: Heller was not a resounding affirmation of our Second Amendment rights.
I am an attorney. That assessment of the importance of Heller is not more accurate with repetition. Prior to Heller, the existence of an individual right was at issue, not merely its scope. If a judiciary is so opposed to a Sup Ct decision affirming the right, what decisions do you think that same judiciary would be writing if Heller had decided that there is no individual right? How much would you need to worry about the appointment of another RBG if the issue had been lost?

Quote:
Originally Posted by Glenn E Meyer
The details are discussed in the article and it points out how decisions are politically motivated for some judges and the Heller language again (whether you think so or not) contained prose that can be used as rationales for gun control (whether you think the decision was brilliant or not).
Emphasis added.

That isn't what the article indicates.

The reasoning in Kronstadt's order contains a severity of burden test not found in Heller and was a decision about open carry, a matter not addressed by Heller, but set forth in Jackson and Sylvester. Staton uses a plain rational basis test which is found nowhere in Heller, but is presented in the plaintiff's argument.

Rather than indicating that these cases use rationales found in Heller, the article indicates:

Quote:
Originally Posted by Declan McCullagh
California judges, especially in cities like San Francisco and Los Angeles, have creatively interpreted the Heller decision into a constitutional near-nullity.

***

This judicial rebellion is not limited to California and the 9th Circuit. It's present in other circuits, including the 2nd Circuit and the 4th Circuit, which has coughed up conclusions like "assault weapons and large-capacity magazines are not protected by the Second Amendment," despite both being in common use.
The rebellion of a judiciary intent on reversing can be addressed by replacing its members with judges and justices who would give due deference to the original public meaning of constitutional text. In our system, that is addressed politically.

Aguila Blanca aptly indicates the reasons for the current weak hand held by that view in the Sup Ct.

Last edited by zukiphile; May 15, 2018 at 08:40 AM. Reason: Just realized that italics in a quote aren't a good method for emphasis.
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Old May 14, 2018, 06:24 PM   #7
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Quote:
Prior to Heller, the existence of an individual right was at issue, not merely its scope.
Yep, i've always understood that.

Last edited by thallub; May 14, 2018 at 06:31 PM.
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Old May 14, 2018, 08:18 PM   #8
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I am a California resident and too make matters worse, the supra liberal 9th Circuit might be tames somewhat were vacancies on that court filled by Trump appointees, but getting them nominated and confirmed is easier said than done.
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Old May 14, 2018, 08:40 PM   #9
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Quote:
I am a California resident and too make matters worse, the supra liberal 9th Circuit might be tames somewhat were vacancies on that court filled by Trump appointees, but getting them nominated and confirmed is easier said than done.
Getting them nominated is easy -- IF vacancies open up during a Trump presidency. The appointments are lifetime sinecures, so unless somebody currently on the court dies or retires, there will be no nominations.
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Old May 15, 2018, 09:32 AM   #10
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Quote:
Originally Posted by Aguila Blanca
The appointments are lifetime sinecures, so unless somebody currently on the court dies or retires, there will be no nominations.
To be fair, the federal judges I've known have been fairly hard working people by their nature. With the exception of Souter, I doubt any modern justice has done it for the paycheck and medical insurance.

If you'd like an additional anxiety, imagine what happens if Thomas dies in his sleep tonight, and DJT decides that he has discharged his promise to the Federalists with Gorsuch. Maybe Thomas doesn't go tonight, but after a midterm election that has the exec deciding to work with Sen. Feinstein in choosing the next nominee. Maybe RBG takes her vitamins and sits for another twenty years.

As Mao probably never actually said, "It's always darkest before it's totally black".

Quote:
Originally Posted by Thallub
Quote:
Prior to Heller, the existence of an individual right was at issue, not merely its scope.
Yep, i've always understood that.
Then you should also understand that there is no ambiguity in the holding that the right is an individual right. That is a resounding defeat of the view that the right is only collective and exercised through state agency.

The Heller decision has limits inherent in the question it presents. Heller argued for a permit to keep a pistol in his home in an assembled condition. That fact pattern is so benign that it may have been pivotal in getting the Court to five to affirm the individual right. The Heller argument was the thin end of a wedge. This means that the Heller decision itself wasn't going to invalidate state restrictions on magazines, which rifle you could use to hunt deer, or whether the federal government could enforce regulations about fully automatic rifles. Even to have the individual right holding applied to states required McDonald. That isn't an error in the Heller decision; it's how precedent is supposed to work.

There is no doubt that judges have political motives, just as writers and staff here may have political motives. In the realm of constitutional issues, part of that political motive involves the degree to which constitutional text is given deference. Some judges genuinely believe that constitutional text should yield to current social values they assess as superior when that constitutional text reads as an impediment. If you read the dissent in Citizens United, you will get Stevens' analysis of whether banning some kinds of speech is a good idea.

Is a good idea therefore constitutional, or is the government power limited by the text of the Constitution? Stevens and Thomas hold different views arising from their approaches when answering that question.

Last edited by zukiphile; May 15, 2018 at 10:31 AM.
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Old May 15, 2018, 02:32 PM   #11
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Quote:
There is no doubt that judges have political motives, just as writers and staff here may have political motives. In the realm of constitutional issues, part of that political motive involves the degree to which constitutional text is given deference. Some judges genuinely believe that constitutional text should yield to current social values they assess as superior when that constitutional text reads as an impediment. If you read the dissent in Citizens United, you will get Stevens' analysis of whether banning some kinds of speech is a good idea.
Hence why Gorsuch was a very good choice IMO. Any judge should have the ability to set aside their "gut feeling" or politics and rule according to the Constitution, even if it isn't popular. Gorsuch has been criticized for doing just that in time past... making an unpopular decision because it was a constitutionally sound position, not because he really wanted to. Citizens United is a good example. I doubt any judge really "Likes" super-pacs and their ability to spend unlimited money on whatever topic they want to influence (and likely through half-truths and mischaracterization). I do not personally care for Super-pacs or the desire for the wealthy to attempt to influence the masses with vast sums of money spent on political advertising, but the SCOTUS made the right, though unpopular, decision in the matter.

Quote:
Maybe RBG takes her vitamins and sits for another twenty years.


Please do not speculate this possibility, even in jest, for the off chance of jinxing us and it actually happens!
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Old May 15, 2018, 02:50 PM   #12
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Quote:
Hence why Gorsuch was a very good choice IMO.
I agree that the decision in Citizens United was probably quite unpopular and that the bans on corporate speech may have been amongst the more popular parts of McCain-Feingold. I write that as a fan of the decision. Gorsuch is also a persuasive writer, so we could hope that he will express the charisma to pull the Kennedys of the future toward his positions.

We can expect more disappointing lower court decisions until the population of the Court improves. Kagan and Sotomayor are both rather young.
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Old May 16, 2018, 10:53 AM   #13
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Quote:
Originally Posted by zukiphile View Post
Even to have the individual right holding applied to states required McDonald. That isn't an error in the Heller decision; it's how precedent is supposed to work.
The only thing worse than applying the Bill of Rights in the U.S. Constitution to the states is to do so selectively.
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Old May 17, 2018, 02:43 PM   #14
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Federal judges-and SC justices-are a very undisciplined group, basically as long as you don't get caught taking bribes and aren't too obnoxious to those who appear in court you can do as you please. All this talk about being bound by "precedent" is so much hype, the SCOTUS reverses previous decisions all the time, and it is not unusual to find lower court judges with reversal rates of 50% or more.
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Old May 18, 2018, 04:16 PM   #15
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As in all laws and decisions it's up to the interpretation . I think the SCOTUS has dropped the ball on this one to include Scalia a bit . When Scalia wrote the 2nd does not allow you to carry what ever you want when ever you want and it's not unlimited . I "interpreted" that as him making sure the Heller case did not undo "ALL" gun laws before it like the NFA .

I believe that was the only reason that wording was in there . Think about it , If they had not put at least some wording in there that allowed "some" restriction the 2nd would be truly unlimited . Now I'm about to go extreme example but hopefully the point will out weigh the extremeness . Where would the unlimitedness stop . Well the word it self would indicate it would not end . I really don't want my neighbor building a fusion bomb in there basement for self defense . OK to much for even the most reasonable , how about the MOAB ? Can we all have some of those in the garage ? I believe the only reason it's questionable for anyone owning and or having the ability to deploy those types of weapons is the indiscriminate nature of said weapons . We Joe Blow just don't have enough information at are finger tips to deploy such weapons responsibly in most cases . There are rich enough people and or groups that could build just about anything if it were legal . I believe it's "THAT" type of restrictions the Heller wording was trying not to undo . Why do I believe this ? Because of the other wording we all thought we loved . "in common use" Why would you say it's not unlimited and at the same time basically say leave the items in common use alone ? "Maybe" Scalia could have done a better job pointing that out .

Unfortunately "it's not unlimited" can be interpreted to mean we can keep restricting until the cows come home . This is where I think the SCOTUS has dropped the ball by letting the lower courts completely neuter the Heller decision .

Anyways that's my take on it . Until the SCOTUS steps up and upholds it's own decisions there's not much to be hopeful for when come to the 2nd which ultimately will cause the rest to erode as well . I'm a strong believer that with out the 2nd , it will be hard to keep the rest over time .
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Old May 29, 2018, 02:54 PM   #16
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Quote:
Of course, Roberts is a snake in the grass, so even better would be if Ruth Bader-Ginsberg would also retire, but because of her hatred for Trump and the 2A (and the Constitution in general), that's not likely to happen.
If the Dems get the Senate they can and almost certainly would block anything for two years on a Garland delay precedent. if the senate turns over and Ruth dies the next day there will be hardball of unprecedented levels to stop a trump nominee. with rushed hearings it is only seven months to go for certainty of successful trump appointments to the courts.

And the DC betting odds right now on Kennedy staying one more are 2:1
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Old May 29, 2018, 02:59 PM   #17
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^^^

All the more reason why we all need to hold our noses and vote in the mid-terms for whomever will back Trump on his nominations. I generally don't consider myself to be a single-issue voter but, in the final analysis, many of the issues I care about are fundamentally constitutional issues, so getting more "originalist," "strict constructionist" justices on the SCOTUS largely addresses all my hot button issues.
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Old May 29, 2018, 05:20 PM   #18
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what we need to consider is the issue doesn't even matter to the foundations, politically individuals and Democratic party as much as it as its utility.

the Publix "die in" is nothing compared to shakedowns, modeled on the successful aspects of Jackson's Rainbow/PUSH, of lots of companies who are threatened and then

We even see a new concerted effort to identify celebrities who are gun owners (Vic Mensa, Mathew McConaughey are likely cases) threaten them with being backlisted unless they step up to support "reasonable" bans.

another the big enchilada is the increasing foundation footprint on this issue. Take a listen to Rob Reich's excellent talk on how there is a huge increase in foundation money into US public policy/politics:
https://www.aspeninstitute.org/podca...ten-democracy/


Quote:
I agree that the decision in Citizens United was probably quite unpopular
Every single dime given through citizens united enabled contributions way is completely transparent, fully reported and citizen accessible at FEC site. You know exactly who gave it and to whom they gave it. and no money given that way is deductible.

Dark money: 527s, foundation money, c3 money, highly paid c3 and c4 and for profit employees sequencing through temporary leave of absences or "grants" to "'volunteer "to work on poltical campaigns. We even have NPR stations running grants programs for reporters from the gun control lobby.

In scope and transparency citizens united is nothing.
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