AR-15s Before Supreme Court - Kolbe v Maryland

[Isk]

The continued rejection of second amendment cases by the SCOTUS, in the near decade since Heller was decided, has been extremely disappointing. This case, out of the Fourth Circuit, which hung its hat on an out-of-context quote in Heller, should have been granted cert just because it is bad jurisprudence to intentionally misconstrue a SCOTUS decision. There was a time the SCOTUS would have come down hard on a lower court for misinterpreting an order like this.

Letting this decision stand gives the lower courts too much discretion. SCOTUS wouldn't let a First Amendment or Fourth Amendment decision be so badly misconstrued. The longer these bans stay in place, the easier it is to argue that they meet the Heller criteria for long-standing regulations.

It seems to me that the SCOTUS is slowly doing away with the principles that kept it a respected authority in this country. When we can no longer seek redress from the Supreme Court for clearly unconstitutional laws, I don't know where that leaves us.

[zukiphile]

Originally Posted by Glenn E Meyer

So we can repeat the following:

1. Heller wasn't a pancea despite the gush of love after it.

Who argues that Heller was a panacea? It was greeted as a victory because it was one. Would you have preferred our laws be based on the dissenting opinions?

Originally Posted by Glenn E Meyer

It had some big negatives.

Such as? States were making laws regulating arms before Heller and McDonald.

Originally Posted by Glenn E Meyer

2. SCOTUS has no interest at present in expanding gun rights or getting rid of the draconian laws in some states. The risk is that state AWBs will continue.

I agree that this danger exists. Do you know whether SCOTUS is disinterested, or whether taking a case now would be strategically unwise given the large minority opposed to the right?

Originally Posted by Glenn E Meyer

3. Congress and the President, despite their bait and switch election rhetoric, have no real interest in gun rights. They only use them as selling points for votes. In fact, having some states with bans enables them to raise the issue to get the gun world all hot and bothered. The NRA magazines heaped inordinate praise on Trump and themselves after the election. Behaviorally, nothing much has been achieved on fundamental issues.

Emphasis added. Behaviourally, you will note that a nut with a bump stocked rifle dumped many hundreds of rounds into a crowd, and no serious effort at legislative restrictions was made. That's not a trivial achievement.

Where is the bait and switch? Is that a reference to Ryan delaying SHARE? I believe most people understand the politics behind that delay.

Why do you conclude that the praise of the political actors, including DJT and the NRA, is inordinate where they've defended the right, identified the problem as the shooter rather than what he shot, diffused the reflexive energy to legislate, and preserved the status quo.


Roberts' sense of political deference doesn't sit well with me; I'd like to get Ginsberg and Breyer replaced with better people and see whether that changes his calculation.

[TracerTesterman]

It hasn't gone unnoticed on the courts either.

https://www.supremecourt.gov/orders/...17zor_8759.pdf

Go to page 30 for the dissent of Justice Thomas and Gorsuch.

(I'm sorry this reads screwed up, cut and pasting a PDF file sucks)

Even if other Members of the Court do not agree that
the Second Amendment likely protects a right to public
carry, the time has come for the Court to answer this
important question definitively. Twenty-six States have
asked us to resolve the question presented, see Brief for
Alabama et al. as Amici Curiae, and the lower courts have
fully vetted the issue. At least four other Courts of Appeals
and three state courts of last resort have decided
cases regarding the ability of States to regulate the public
carry of firearms.

The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second
Amendment as a disfavored right.

The Constitution does not rank certain rights above others,
and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights.

The Court has not heard argument in a Second Amendment case in
over seven years—since March 2, 2010, in McDonald v. Chicago,
561 U. S. 742. Since that time, we have heard argument in,
for example, roughly 35 cases where the question presented
turned on the meaning of the First Amendment and 25 cases
that turned on the meaning of the Fourth Amendment.
This discrepancy is inexcusable, especially given how much less
developed our jurisprudence is with respect to the Second Amendment
as compared to the First and Fourth Amendments.

Let's hope a couple more SCOTUS's retire before Trump gets out of office.

[Bartholomew Roberts]

One distressing aspect of Kolbe was that unlike the other cases upholding bans, they did not do the 2A two-step (law is outside “core right” of Second, law survives lesser scrutiny which is rational basis in all but name). Kolbe just said: “Nope! Not protected by the Second.”

It is disappointing to see cert denied. I certainly hope that isn’t a reflection of very weak support for the 2A even among the remaining Heller majority; but that seems a reasonable way to attribute it.

[thallub]

The MD AWB was allowed to stand with no formal dissent:

Perhaps the most noteworthy denials came in two cases involving gun rights: Kolbe v. Hogan, a challenge to Maryland’s ban on semi-automatic rifles and large-capacity magazines, passed in the wake of the mass shooting at a Connecticut elementary school; and Norman v. Florida, a challenge to the state’s ban on the open carrying of guns in public. In both cases, the lower courts had upheld the states’ bans, so today’s rulings leave those decisions in place. Unlike last June, when Justices Clarence Thomas and Neil Gorsuch dissented from the court’s denial of review in Peruta v. California, in which the justices had been asked to decide whether the Second Amendment protects the right to carry a gun outside the home for self-defense, today’s denials were not accompanied by any public comments from the justices.

http://www.scotusblog.com/

Glenn E. Meyer is right: Political hacks are playing gun rights folks like fools.

[Frank Ettin]

I'm kind of glad the Court didn't take the cases. The deck seems to be stacked against us, and the wild card is perhaps a bit too wild.

[turkeestalker]

In my opinion which is worth absolutely nothing, now is not the time.
I've always been convinced that there could be three appointees if this president serves a second term, but nothing says that I'm right.
Just a feeling, and there has already been one.
Seems to me it may be wise to wait a bit before taking on anything of real consequence.

[Psychedelic Bang]

Originally Posted by turkeestalker

In my opinion which is worth absolutely nothing, now is not the time.
I've always been convinced that there could be three appointees if this president serves a second term, but nothing says that I'm right.
Just a feeling, and there has already been one.
Seems to me it may be wise to wait a bit before taking on anything of real consequence.

That's assuming Trump care's for the 2nd Amendment. Remains to be seen imho

[Frank Ettin]

Originally Posted by Psychedelic Bang

That's assuming Trump care's for the 2nd Amendment. Remains to be seen imho

Trump's position on the Second Amendment isn't the issue. It's his inclination to appoint judges and Justices with a more "originalist" perspective and the ability of Congressional leadership to get those appointments ratified.

[turkeestalker]

I don't really believe that there is much to assume when it comes to Trump, but who knows... you and I both could wind up looking like a**es PB.

[Psychedelic Bang]

Originally Posted by Frank Ettin

Trump's position on the Second Amendment isn't the issue. It's his inclination to appoint judges and Justices with a more "originalist" perspective and the ability of Congressional leadership to get those appointments ratified.

I know.. I was just saying, "cares," as in he is in the position to appoint originalists - he seems like he would.. but its not a done deal.

we could wind up with a, "living breathing document," type of judge receiving an appointment and then... we are in serious trouble


In the libertarian circles I hang with there are some folks who can be described as, "enamored with Trump," and some folks who can be described as, "he's pretty gross."

I like what Susan Sarandon said. Go figure she would say something like that...

but me personally, "yes," I think the President would do better than a Ruth Bader Ginsburg - but we do not know, until we find out.

Originally Posted by turkeestalker

I don't really believe that there is much to assume when it comes to Trump, but who knows... you and I both could wind up looking like a**es PB.

Yep

[ATN082268]

Originally Posted by Glenn E. Meyer

1. Heller wasn't a pancea despite the gush of love after it. It had some big negatives.

2. SCOTUS has no interest at present in expanding gun rights or getting rid of the draconian laws in some states. The risk is that state AWBs will continue.

In general, the courts seem pretty hostile to the 2nd Amendment. Does it really matter though that SCOTUS declared the 2nd Amendment as an individual right when the lower courts uphold almost any state gun regulation and the SCOTUS doesn't take up these cases?

[Glenn E. Meyer]

That's my point. Heller said that but if you look at positive outcomes lately, you don't see that much. There seemed to be a big positive in Illinois. However, the auxiliary prose in Heller is thrown up all the time and that's a big negative. Given Scotus won't take up a case, we see a build up of precedent that enshrines certain firearms as evil, military and eminently ban worthy. If one looks at just buying a handgun, for example, in NY state and certainly in NY City, it is not a guarantee you can. There is a very oppressive system of permission.

I certainly understand that there is a risk of bringing these cases forward as to yielding a negative outcome. That was the argument against Heller and it was razor thin. It's been argued Scalia's crap was necessary to get Kennedy to go along.

I have argued elsewhere that the current set of cases should not have been pursued just because of that risk. The proponents might have thought they would win at SCOTUS but instead just strengthened local antigun laws.

My other point is that there could be legislative solutions to the state bans but like the HPA, there is no interest in vigorously pursuing progun bills. We saw Ryan leap at the chance of ditching it. I heard that reciprocity is moving. It is controversial but I'd bet it will never see the floor of the House.

Now some say that it is progress that we stay in place and don't get new bad Federal laws. It is progress that we trade Gorsuch for Scalia. It is great that the recent tragedies didn't generate more Federal actions. However state bans increase in purple states. More craziness may increase the purple and change the Congress. Defense is great, it is needed but in the multitude of political decisions we make, that is insufficient for me.

It is noteworthy that when you hear 'conservative' priorities discussed - proactive legislation on gun rights is never mentioned by the mainstream of that tribe.

[zukiphile]

Originally Posted by ATN

Does it really matter though that SCOTUS declared the 2nd Amendment as an individual right when the lower courts uphold almost any state gun regulation and the SCOTUS doesn't take up these cases?

I think it does matter. When the court revisits the issue, perhaps when its composition has changed, it can serve as a foundation.

Do you really believe your rights or the future prospects for your rights would have been precisely the same if the decision in Heller had been that the 2d Am. protected your right to be issued a rifle if you joined the National Guard?

[natman]

Originally Posted by Glenn E. Meyer

http://abcnews.go.com/Politics/wireS...peals-51407151

https://www.bloomberg.com/news/artic...-supreme-court

From the original decision under appeal:



Not being expert and our can chime in, it looks like SCOTUS turned a Maryland ban on EBRs and a open carry case.

So we can repeat the following:

1. Heller wasn't a pancea despite the gush of love after it. It had some big negatives.

2. SCOTUS has no interest at present in expanding gun rights or getting rid of the draconian laws in some states. The risk is that state AWBs will continue.

3. Congress and the President, despite their bait and switch election rhetoric, have no real interest in gun rights. They only use them as selling points for votes. In fact, having some states with bans enables them to raise the issue to get the gun world all hot and bothered. The NRA magazines heaped inordinate praise on Trump and themselves after the election. Behaviorally, nothing much has been achieved on fundamental issues.

The problem isn't "negatives" in Heller, it's dishonest judges interpreting it. From the 4th's decision enabling the ban:

That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”).

Here's what Heller actually says:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

Note that the first sentence presents a hypothetical objection and the second sentence refutes it. The 4th saw fit to take selected words from the first sentence completely out of context and twist them 180 degrees from Heller's actual position on the definition of the meaning of the word "arms":

“Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.”

“Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”
DC v Heller, pages 7-8

It is disappointing that SCOTUS denied cert. At the very least SCOTUS should have sent this back for reconsideration without even hearing the case via a per curiam opinion because the lower court perverted Heller so badly, just as they did when Caetano v. Massachusetts used the "muzzleloaders only" argument specifically rejected by Heller.

[ATN082268]

Originally Posted by zukiphile

Do you really believe your rights or the future prospects for your rights would have been precisely the same if the decision in Heller had been that the 2d Am. protected your right to be issued a rifle if you joined the National Guard?

Pretty much, yes. There might be some small changes or differences but nothing radically different than now.

[K_Mac]

ATN our current rights would be very different if the Heller decision said that only firearms issued to active NG members were protected by the 2A. That interpretation is a popular one in many circles. While imperfect, Heller was a victory for our right to keep and bear arms. Leaving the states free to define what we can keep and bear allows for restrictions that go well beyond the intent of the amendment, but I can legally carry a concealed handgun in Illinois as a direct result of Heller.

I think Frank Ettin is right that in the current climate rolling the dice is a risky gamble.

[Bartholomew Roberts]

Well, between 1939 and 2007, SCOTUS did not hear any challenges on Second Amendment grounds. So much so that by the time Heller nee Parker came around, the 5th Circuit and D.C. Circuit were the only two courts of appeal left that hadn’t ruled the Second as a collective right.

So we’ve certainly come back from worse. However, my big concern is that universal background checks/registration gets pushed through Congress before any type of SCOTUS rulings treating the Second comparable to the First or Fourth. If that happens, it will be Chamberlain’s choice between war and dishonor.

[LogicMan]

Until the SCOTUS gets a conservative replacement for one of the liberal justices on the Court, I wouldn't role the dice, because I don't trust Kennedy. And the lower courts show that the anti-gun judges will resort to some outright crazy reasoning to uphold these gun control laws. I really wish Scalia had singled out the AR-15 as an example of a Constitutionally-protected weapon.

[publius42]

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

Scalia really could have gone all day without saying any of this. It absolutely SHOULD have been objected that banning militarily-useful rifles is contrary to the second and that should have happened in a subsequent case and been considered at that time.

[zukiphile]

Originally Posted by publius

Scalia really could have gone all day without saying any of this. It absolutely SHOULD have been objected that banning militarily-useful rifles is contrary to the second and that should have happened in a subsequent case and been considered at that time.

What if there weren't a fifth vote for that?

If the NFA were invalidated by Scalia's opinion, it almost certainly would have been a minority opinion. You may recall from oral argument that the solicitor general made it clear that his office opposed the DC ban at issue in Heller, but did not seek invalidation of the NFA.

Gura also made it plain that the NFA was beyond his argument.

[brian33x51]

When it comes down to it the states need to step in and force the the government to uphold the contract of the constitution or recognize that the contract has been irrevocably broken and act to protect their citizens. Its unfortunate that IMHO the federal income tax and popular election of senators together effectively broke the back of the states' power against the federal government. As my mother pointed out (german immigrant) the US is now more of a democracy now than some of the european nations.

The courts will always be left. That's the nature of the rank and file that have been coming out of law schools.

[Psychedelic Bang]

Originally Posted by brian33x51

The courts will always be left. That's the nature of the rank and file that have been coming out of law schools.

A well educated sober society is a free society. A poorly educated, addicted society is an enslaved society.

My father was a lawyer. A great lawyer. Not sure if those types of lawyers exist anymore. You are correct in your assumption that the lack of great lawyers is in essence a danger to our rights.

Government always wants a society to control - goes straight back to the 2nd Amendment - the security of a free state. When society disarms, the result is: a state secured under government control.

[ATN082268]

<The courts will always be left. That's the nature of the rank and file that have been coming out of law schools.>


To me that's only a problem if the left substitutes its personal preferences over the text and context of laws more than the right.

[Glenn E. Meyer]

Research demonstrates, as I have said before, that justices of all ilk vote their personal beliefs but then search past precedents or interpretations to justify their politics. It is not just a characteristic of the left.

To the basic debate, the rhetoric and what might have been on Heller on votes, etc. does not negate the fact that Scalia (interpreted correctly or not) is used to justify state bans that clearly should be unconstitutional and these precedents are becoming stronger.

Positive behavioral outcomes of Heller besides rhetoric vs. negative usage of the decision will decide it the case was ill-advised and whether the follow ups are ill-advised.