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November 25, 2009, 08:58 PM | #226 |
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For those keeping track, there are 31 briefs in support of McDonald and 2 briefs in support of neither party (the earlier referenced ABA website has one more brief than the ChicagoGunCase website:
Amicus Briefs in Support of Petitioners
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November 25, 2009, 11:07 PM | #227 | |||
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Waxman was Clinton's Solicitor General during our darkest hours in the late 1990's, and it's odd that his imprint is absent. Another observation: every state that seceded from the Union signed on to the Texas Attorney General's brief. After a good night's sleep and some Maalox, I've been rereading the NAACP brief, and one of their arguments against going the PorI route comes down to "judicial restraint." They suggest: Quote:
Could we end up with two coeval doctrines, one based on PorI that specifically protects rights enumerated by the Constitution, and one based on Due Process that protects rights implied by its spirit? He may have been an irascible, vain, racist coot, but McReynolds had a point about the merits of Due Process in Meyer v Nebraska: Quote:
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November 26, 2009, 07:39 AM | #228 | |
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Think about it: if Brady had written a really powerful brief for the other side, they would stand to lose tax exemption and we would hang them with their arguments (which aren't popular with the public) for years. They took an obligatory lame swing and are hoping no one notices, and it was just lame enough that no one will.
The NAACP is terrified of Privileges and Immunities, but it may be something they should not fear so much. They're worried about all the due process law, but what happens to it if the 2a is decided on P&I grounds? I was rereading the Stevens dissent in Heller last night. Much of it is now moot and will not be considered, unless the Court decides to overturn Heller. Not all of it. He makes a good point: Quote:
Maybe by defining a privilege or immunity for the first time, and making clear it has a unique nature? |
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November 26, 2009, 09:19 PM | #229 | |
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This is hopefully only a small side trip as I certainly don't want to hijack this thread.
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When a state prisoner brings a federal habeas corpus petition, the federal court is directed by the Antiterrorism and Effective Death Penalty Act (AEDPA) to defer to state courts' decisions unless (1) they have unreasonably applied controlling federal precedent or (2) unreasonably determined the facts of the case. In Wood v. Allen, the petition for the state prisoner posed a question about unreasonable application and then proceeded to argue an unreasonable determination of the facts (intermeshed with unreasonable application). A fuller description is at http://www.crimeandconsequences.com/...-presente.html and a transcript can be found online. The underlying question involved ineffective assistance of counsel in a death penalty case and, therefore, there is a possibility that some on the court might ignore the procedural faux pas. If so, then the Brady brief might make some tactical sense. Ignore what is likely to be a losing proposition and, instead, focus on the standard of review to emasculate the effect of a ruling incorporating the 2nd Amendment. |
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November 27, 2009, 07:10 AM | #230 |
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Publius, Stevens diatribe is a red herring IMHO.
The 19th Amendment allows women to vote. Yet, convicted felons cannot vote. So would it be ok for an area to totally prohibit someone from voting? Of course not, even though we would be carving out what Stevens weakly calls a limited protected class. You could reverse Stevens statement and state that the 2nd Amendment carves out unprotected classes of people who happen to be felons. In essence, IMHO, Stevens is grasping at straws to justify his weak position. To call law abiding citizens a protected class when all it means is convicted felons do not fall under that right is a red herring with no logical "teeth" IMHO. I mean, no logical thinking person would say prohibiting convicted felons (violent felons) from owning firearms creates, by its very prohibition, a protected law abiding class. That prohibition does not create a limited protected class of law abiding citizens. What the felon did was remove himself/herself from the citizenry at large by their serious criminal acts. They become the unprotected class. Stevens reverses this fact in support of his weak position IMHO. In other words, it is a stupid analogy by Stevens IMHO. An analogy mentioned by Stevens because, at his core belief, firearms ownership should be prohibited for private individuals. |
November 27, 2009, 07:45 AM | #231 |
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RDak, until the GCA of 1968, felons, violent or otherwise, had no Federal Firearms Disability. A mere 40 years ago, someone who had served their sentence could own just about any firearm they wanted. They were not bound by the State they lived in, as to where they purchased a firearm. There were no form 4473's, let alone NICS checks.
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November 27, 2009, 07:55 AM | #232 |
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I understand Al.
My point was Stevens seems to say that carving out felons creates a law abiding protected class while, to me, everyone is protected until someone commits a felony. He has it in reverse IMHO. To use Steven's analogy as justification for prohibiting a law abiding citizen from ever owning a firearm is a stretch of logic that, IMHO, is a very weak argument. Stevens also states that by prohibiting felons (and the insane I assume) from firearms ownership this fact "significantly narrows the right to a narrow subset". This simply a red herring IMHO. Normal ordinary folks are not convicted felons and/or insane. All the restriction does is remove those types of individuals from 2nd Amendment protection. It does not create a significantly narrow protected subset IMHO. You are correct though about the 1968 GCA (and I don't agree with the 1968 GCA in many, many ways but Stevens overstates the effect of removing convicted felons and the insane to "insane" levels IMHO). Last edited by RDak; November 27, 2009 at 08:10 AM. |
November 27, 2009, 01:05 PM | #233 | |
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The Court, in inspecting the legislative history of § 1202(a)(1) quoted a framer as being instructional. Justice Blackmun wrote (emphasis added): So yes, the felony conviction removed the felon from the general protected class that encompasses the mass of the citizenry which Scalia casually described as, “law-abiding, responsible citizens.”"What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed: Stevens is being disingenuous in his Heller dissent. |
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November 27, 2009, 02:42 PM | #234 |
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My bad, RDak. I don't know why I didn't see that the first time around ... Unless Justice Stevens has had a change of mind and wants to narrow the scope of which felonies should enable the disability? (not holding my breath on that meaning)
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November 28, 2009, 03:43 AM | #235 |
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No problem Al. You've forgotten more of this stuff than I will ever know for pete's sake.
Al, just your opinion, how do you think McDonald will play out? Reelin' Rod: EXCELLENT find!! Stevens does appear to be talking out of both sides of his mouth doesn't he? |
November 28, 2009, 10:24 AM | #236 |
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RDak, my opinion is worth every bit of what you've paid for.
I agree with most pundits. We will get incorporation. It's the matter of which type of incorporation that my crystal ball is foggy about. There are several other things I think the Court may do, depending upon how much consensus Justice Thomas and Scalia can build. If they go for a straight forward Due Process incorporation, striking down the Chicago laws, but still hanging back on the type of scrutiny (the recent 7th Circuit case - US v. Skoien - will be the factor here - rational basis is off the table, but intermediate and strict scrutiny will depend upon the case), then I foresee a 9-0 decision. A lot depends upon the internal politics of the Court and what arguments Chicago (and friends) might bring to bear. |
November 28, 2009, 11:17 AM | #237 |
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The judgment will be 5-4 because the liberal justices will want to uphold the Chicago codes. The reasoning might enjoy a larger majority because some of the liberals might want an expansive PoI Clause. If it is the old fashioned Due Process incorporation then that will maintain the status quo and liberals have less of an incentive to join.
I've been thinking about the issue of scrutiny and Heller lately. Most commentators seem to assume that the reason why the Court did not decide on a scrutiny standard was because the majority was divided. An alternative theory came to me the other day and I would like to share with you all: 1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection. Perhaps that's why the majority could not decide on a single standard. They don't want a single standard. 2. It may also be possible that the Court intends to give rational basis test some teeth. Generally, it is thought of as a blank check for the government. But the majority stated that an outright ban fails all levels of scrutiny. That suggests that it fails even the rational basis test. The libertarian Institute of Justice is filing a constitutional challenge to the National Organ Transplant Act. (See part 1, part 2, part 3, part 4, and part 5) I know that this doesn't relate directly to firearms. But the argument being used is quite fascinating. If they prevail (which I seriously doubt), it will have significant impact on constitutional law in general and may indirectly impact future court rulings on gun control legislation. Their argument on rational basis test (see part 3) also seems tailored to encourage the courts to strengthen the rational basis test. Perhaps Heller is heralding an era in which the courts take rational basis test more seriously? If so, it will be very interesting if decades from now when the 2nd Amendment is no longer being disputed, when the Bradyites have been reduced to a historical footnote, Heller might be less remembered for defining the 2nd Amendment and more remembered as the beginning of the courts' effort to enforce the rational basis test. From this perspective, perhaps the foundation of the dispute between the majority and the minority lies in the fact that the minority foresaw the possibility of a strengthened rational basis test and recognized what it will mean for government legislation in general. Last edited by htjyang; November 28, 2009 at 11:27 AM. Reason: added part 4 |
November 28, 2009, 12:22 PM | #238 | |
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The court explained this two tier scrutiny it thinks applies: Interestingly (especially with the amount of attention it is getting from gun control advocates) the government apparently based its entire justification on Heller's "presumptively lawful" wording; a path not much accepted by the court.". . . we read Heller as establishing the following general approach to Second Amendment cases. First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further. If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right. UNITED STATES OF AMERICA v. STEVEN M. SKOIEN"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. . . . Last edited by ReelinRod; November 28, 2009 at 12:41 PM. |
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November 28, 2009, 01:59 PM | #239 | |||
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By Justice Syke's logic, laws infringing on the right to keep arms for self-defense would be subject to strict scrutiny. Stuff that falls outside original intent would receive intermediate scrutiny. Rational basis was taken off the table in Heller, and she confirms it here. So, bans on "assault rifles" would fail, because those are militia weapons "in common use." Likewise, we could see the "sporting purpose" designation thrown out as well. In terms of right-to-carry, things could get interesting. Open carry could be argued to deserve strict scrutiny, while concealed carry would have to survive intermediate scrutiny. Even in the second case, the burden lies on the government to prove "contemporary means-end justification." Such justification can easily be dismantled by statistics. Quote:
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November 29, 2009, 11:00 AM | #240 | |
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As for me, I think we'll get incorporation. What will be the SCOTUS vote? I simply do not know. (I tried to predict Heller and thought it would go 7-2 at worst. I was TOTALLY wrong.) I believe strict scrutiny will apply to the general right to own a firearm that is in common use and intermediate scrutiny will apply to all other firearm rights. But, once again, this is a WILD guess. In the end, I simply don't know. But I am as excited as heck to eventually read McDonald since I, like all of you, have been waiting for the major portion of my adult life for cases like Heller and McDonald to make it to the SCOTUS. ETA: I don't know if McDonald will even get into the scrutiny area? |
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November 29, 2009, 12:55 PM | #241 | ||
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If you'd told me in 1995 that we'd win an individual-rights interpretation and incorporation in the space of two years, I would not have believed you. Sometimes it's good to be proved wrong. Quote:
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November 29, 2009, 12:57 PM | #242 | |
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The downside is while there may be widespread agreement on incorporation, I am betting that the standard of scrutiny is going to be hotly debated. Justice Kennedy is likely to once again end up in the driver's seat in determining what scrutiny applies. |
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November 30, 2009, 01:59 PM | #243 | |
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The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition.
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November 30, 2009, 02:48 PM | #244 |
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No kidding, imagine if we all had to drive with ear muffs on. That would be quite a sight.
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November 30, 2009, 04:06 PM | #245 | |
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Essentially, Heller acknowledged that the right to keep and bear arms was fundamental. The NFA is a tax on that right. If we apply prior precedent, the NFA is plainly unconstitutional. See Harper v. Virginia State Board of Elections, which ruled poll taxes unconstitutional, or Minneapolis Star v. Minnesota Commissioner of Revenue, a case that ruled a Minnesota tax on ink and paper to be an unfair abridgment of freedom of the press. We'll get there. Oh, and oral arguments are Tuesday, March 2, 2010 at 10:00 a.m.
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November 30, 2009, 05:28 PM | #246 |
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P&I seems inherently more limiting on the scope of rights that are protected, but protects them more fully.
DP seems to allow whatever justice can get 5 votes to make up any right he/she so chooses. P&I would be nice because it logically leads to a requirement that states bring back grand jury and civil jury protections that have been eliminated in some states. OTOH, the courts have somehow found it acceptable to emasculate the 4th and 5th amendments. They may well find ways to do the same to the second if they incorporate it.
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November 30, 2009, 10:44 PM | #247 | |
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For those of you following the threads over at the Volokh Conspiracy, Alan Gura has answered Prof. Kerr, late Sunday night:
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November 30, 2009, 11:44 PM | #248 |
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As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive. The Court in Heller already stated that the 2nd Amendment right is a pre-existing right that predated the ratification of the Constitution. That suggests the right can exist independent of the government's existence. In fact, the Heller majority specifically mentioned the traditional anti-tyranny rationale 3 times. That clearly contemplated the existence of the right even after the end of our constitutional arrangement. So I don't see why Gura is still concerned about a 2nd Amendment right that is revocable by the government.
That's the natural rights perspective. From a purely realistic perspective, government can indeed take away any right it wishes to revoke. The inherent dangerousness of arms is what makes any comparison to the 1st Amendment problematic. For the most part, prison inmates still retain the right to free speech. But nobody is arguing that prison inmates retain a right to keep and bear arms. There is an inherent contradiction in Gura's position. He believes that the 2nd Amendment right exists independently of the government. Yet who is he asking to redeem that right? The government, of course. The judiciary is as much a part of government as the executive or the legislature. In fact, had Justice Kennedy woke up from the wrong side of his bed for Heller, there would've been a Justice Stevens majority opinion that upheld the DC codes. I believe that Gura's argument for incorporation and overturning Slaughterhouse is persuasive. With all due respect to Prof. Kerr, I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me. |
December 1, 2009, 12:14 AM | #249 |
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I didn't see it posted so, arguments will be heard March 2nd.
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December 1, 2009, 12:19 AM | #250 | |
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Some hold out more hope for PorI invigoration from the liberal side of the court than from Scalia, Alito and Roberts. That would be unfortunate coming from so-called originalists, but we've got politics in the mix. Still, I think Kennedy may be the true wild card here.
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