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Old September 5, 2018, 06:47 PM   #1
TXAZ
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Judge Kavanaugh testimony on Heller, 2A: Whats reality?

I read a couple of articles on the testimony I've been watching today and reading what I can find on the Internet (yea I know), I'm more confused on what I heard the judge say on his support for Heller and 2A. There are a fair number of neuances going back and forth us lay guys don't catch.

And the articles that are currently published are +/- 'every felon will get an assault rifle', et al. (I was going to put in the CNN and Vox link but naa)


So, can one of you that understands what he said, provide an analysis where he may head with the 2A in particular?

Thanks very much,
TXAZ

I'd like to keep this separate from the SCOTUS thread as that's much broader.
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Old September 5, 2018, 06:53 PM   #2
Glenn E. Meyer
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https://www.vox.com/2018/9/5/1782031...-supreme-court

Here's a summary, if it is accurate.

The antigun folks fear that the new court will finally take a state case and void all the state bans on guns and mags. I don't see it but I hope I'm wrong. He certainly won't void NFA rules as he said the state can ban machine guns.

The problem is whether the usage tangle can be settled in favor of not allowing state bans on the higher cap guns and mags. If the argument comes down to self-defense, then the Judges can look for precedent in the Internet forums' 5 is enough crowd and support things like the SAFE act with its 7 round limit.

I'd never trust a politician who doesn't own an AR or AK and a higher capacity semi to understand the issues.

That is not a guarantee however as Gabby Gifford's was a Glock 19 fan before her shooting and Rachel Maddow is an AR and 1911 shooter for fun. Still wants them controlled though.

Arguing for defense against tyranny supporting higher cap stuff to fight against tyranny seems lost in the discussion.
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Old September 5, 2018, 07:13 PM   #3
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Quote:
Originally Posted by TXAZ
So, can one of you that understands what he said, provide an analysis where he may head with the 2A in particular?
I saw the colloquy with Sen. Feinstein. She asks how he can reconcile a right to an assault weapon with school shootings, of which she alleges there have been hundreds in the last several years.

BK explains that the case before him was about a ban of semi-auto rifles, that he read the rule in Heller about a semi-auto handgun as sufficiently analogous to apply Heller to the case before him, concluded that the Heller in common use standard applied, and struck the ban on semi-auto rifles.

DF objected that "machine guns" can be banned. BK agrees, but notes that the semi-auto rifles subject to the ban were not legally unlike all sorts of semi-auto rifles of which there are many millions in the country.

DF was astounded by the idea that he would conclude that such rifles are in common use just because many millions of people have them. She suggested that "use" in "in common use" required events in which they are used. BK essentially repeated his explanation as if to suggest that common possession satisfied the "in common use" standard, and noted that he didn't make the law, but he did apply it.

He also dealt with the "unusual and dangerous" language of Heller by noting that all weapons are by their nature dangerous, so that can't be a strike against semi-auto rifles, and that rifles owned by millions can't be unusual.
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Old September 5, 2018, 07:43 PM   #4
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Thanks Glenn. That same "Vox" was one of the IMHO a 'sky is falling' articles.
I appreciate your summary.

Zuki, I watched the feigned outrage / astonishment from difi, when she well knew the specifics on guns, she's been the most involved of any Senator.

Conversely, the senator from Hawaii was hillarious, making a very long statement with a complex answer question, then running over the judge as he was answering it.

I understand that Kavanaugh isn't the issue, tilting SCOTUS out of Dem favor is.
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Old September 5, 2018, 08:10 PM   #5
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Seeing who is against him, I am satisfied with his appointment. I saw some of Feinsteins gun stuff on TV during the hearing and frankly had to turn it off to keep my lunch down. Seems to me she was trying to admonish him for not considering legislating from the bench on gun issues.
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Old September 5, 2018, 08:16 PM   #6
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It was interesting in the comparison of judicial decisions between Merrick Garland and Brett Kavanaugh: They voted together more than 90% of the time.
Senate Politics at it's best...
This is about "getting even", not advancing the United States.
That ought to be a very serious offense.
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Old September 6, 2018, 12:58 PM   #7
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Kavanaugh's record so far is pro-gun.
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Old September 6, 2018, 03:38 PM   #8
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Kavanaugh is a rule of law Constitutional Judge. With regards to the 2a, he will rule each case on its merits and not interject his personal feelings. Did you know that he hasn't voted in the last 20 years. He didnt because he didnt want his political choices affecting his judgement on the bench. I think we'll be just fine with him. He may not rule the way we want every time but I believe he will rule correctly all the time. He's going to be Scalias direct replacement.
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Old September 6, 2018, 05:47 PM   #9
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FYI I find it very interesting/alarming that Diane Feinstein has been challenged in her home state for not being FAR ENOUGH LEFT!!!

https://www.vox.com/policy-and-polit...ifornia-senate
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Old September 6, 2018, 06:05 PM   #10
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That’s really off topic but I will let it stand but it’s not a discussion topic.
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Old September 6, 2018, 07:25 PM   #11
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Well, from today’s exchange we know that Kavanaugh reads amicus briefs in 2A cases, thinks semi-autos are “common use” and not unusual, and won’t back down on those points or water them down even during his confirmation hearings.

I think all of those developments are positive. That also brings the Court to three solid votes against an AWB.
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Old September 6, 2018, 10:07 PM   #12
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Yes. He got criticized for not accepting that Heller and Scalia supported a ban. K obviously said it didn’t read that way. The problem is whether one of the other two ‘conservatives ‘ will take a case and if the two would vote to overturn the widely accepted common sense bans. How could you be such an outlier, Judge K.?
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Old September 6, 2018, 11:14 PM   #13
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Quote:
Originally Posted by zukiphile
I saw the colloquy with Sen. Feinstein. ...
I watched it as well. Your summary is a good one.

I'm encouraged that Kavanaugh believes that the "in common use" phraseology in Heller applies to semi-auto rifles as well.
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Old September 7, 2018, 08:09 AM   #14
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I think the most telling part was that he said he would remand magazines for findings of fact on whether they were in common use. That tells us a few things:

1. He sees magazines as subject to Heller.

2. Instead of skipping a step, he did the very formalistic, legally correct thing and would remand the issue to lower courts for factual findings.

Based on those two items, I think he’ll be great for the Second Amendment; but change is likely to come very slowly.
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Old September 7, 2018, 11:21 AM   #15
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It makes sense now how often the false statements are made about how 'gun ownership is at all time lows!' and 'the gun industry is sinking'.

If the opposition can convince the masses that guns are *NOT* in common use (except when there are mass shootings or exaggerations of the number of mass shootings), then they can turn that argument around about 'in common usage'.
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Old September 7, 2018, 11:51 AM   #16
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Quote:
Originally Posted by spacemanspiff
It makes sense now how often the false statements are made about how 'gun ownership is at all time lows!' and 'the gun industry is sinking'.

If the opposition can convince the masses that guns are *NOT* in common use (except when there are mass shootings or exaggerations of the number of mass shootings), then they can turn that argument around about 'in common usage'.
This is also why they want us to believe that all of the 350 million [arbitary, made-up number] legally owned guns in the U.S. are all owned by just ten people ... thereby "proving" that widespread firearms ownership is a fantasy, not reality. And if so many guns are owned by so few people, then obviously they can't be using them. Ergo ... irrespective of how many guns anyone owns, if they aren't using them, then the guns aren't in common use.
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Old September 7, 2018, 11:58 AM   #17
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Blanca, that sounds like the reasoning of a social studies professor!
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Old September 22, 2018, 10:44 AM   #18
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At this point we should start looking at who’s next on the list
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Old September 22, 2018, 11:03 AM   #19
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Let's not go there. The current uproar is not for TFL discussion.

This is a big hint.
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Old September 22, 2018, 01:20 PM   #20
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She asks how he can reconcile a right to an assault weapon with school shootings, ..
I realize that anyone who actually spoke the whole truth would never (in today's world) get far enough for consideration, but I would dearly love to see someone answer this..." She asks how he can reconcile a right to an assault weapon with school shootings, " with this answer...

"Because, Madame, there is a Constitutionally protected right to "assault weapons", and there is no Constitutionally protected right to commit school shootings."

Personally, I would also add this...
"School shootings are, in fact a crime, in case that fact has slipped past your attention..."

Just to get it in the record...
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Old September 22, 2018, 05:02 PM   #21
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I realize that anyone who actually spoke the whole truth would never (in today's world) get far enough for consideration, but I would dearly love to see someone answer this...
That's part of what made Bork's week long hearing so interesting. He explained the law in response to questions roughly as dopey as "How do you reconcile school shootings with a right to an assault weapon?"

He never actually called Sen. Metzenbaum a moron, but he also didn't pretend that the calculated posturing and preening were decent constitutional analysis either. Overall they seemed more civil, but that was pre-Spartacus.

As satisfying as direct answers can be to an audience of you and me, there is no benefit to a nominee in making a senator look like a dope. The closest Kavanaugh came was in response to Sen. Blumenthal's prodding about conversations with anyone about Mueller. It was a bit of comedy Blumenthal clearly didn't enjoy. I can't find a transcript, but it went something like:

Blumenthal: Did you speak with anyone at the XYZ firm about the Mueller investigation.
Kavanaugh: I'm not recalling anything like that. Maybe you could tell me who you have in mind.
Blumenthal: I'm more interested in who YOU have in mind.
Kavanaugh: I definitely didn't discuss it with any of them.
Gallery: Laughter.
Blumenthal: Well, putting comedy aside....

To his credit, Blumenthal seemed embarrassed by the recognition that his question was inane.

Last edited by zukiphile; September 22, 2018 at 05:10 PM.
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Old September 22, 2018, 10:00 PM   #22
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there is no benefit to a nominee in making a senator look like a dope
Seems to me they do a fair job of that all by themselves...


Lawyer:

"So Doctor, did you check the victim's pulse?"

Coroner (on witness stand):
"No."

"Did you check his breathing?"

"No."

"Blood pressure?"
"No"

"So, in fact, you had no way of knowing he was dead?!"

"Well, his brain was sitting in a jar on my desk, but I suppose he could have been out there practicing law, somewhere..."

or, in politics...
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Old September 24, 2018, 10:19 AM   #23
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Interesting article on how the courts were and have become just a branch of partisan politics and the idea of neutral judges and justices analyzing many major legal issues is an illusion for the most part: https://www.politico.com/magazine/st...diciary-220530
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Old September 24, 2018, 06:42 PM   #24
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Quote:
Originally Posted by Glenn's Linked Article
Judicial review is viable only so long as Americans and the officials they elect respect the broader constitutional system sufficiently to overcome their inherent distrust of nondemocratic exercises of power. Nothing will erode that respect faster than the perception that the judiciary is merely another political actor.
That pretty well sums up the current situation...
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