November 26, 2018, 01:05 PM | #1 | ||
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SCOTUS musings
It has been debated that Heller contained language that had a double edged sword and perhaps a serious flaw or two or more:
1. The emphasis on self-defense downplayed the defense against tyranny 2. The language enabled the state bans on weapons and magazines 3. It supported the idea of gun control in general within limits (what are the limits?). This view offends some who think the language is brilliant and despite the misinterpretation of the language by lower courts to support bans, that the language allows such malicious misinterpretation isn't problem. Anyway, here's a story about John Paul Stevens that discusses how problematic language was part of Heller. Stevens says Heller was one the greatest SCOTUS mistakes: https://www.nytimes.com/2018/11/26/u...ns-memoir.html A relevant quote: Quote:
In the Kavanuagh hearings, to continue the risk of language, we see the term 'common usage'. Is this another trap? In the weapons bans, Kavanaugh claimed common usage might protect some things but Diane argues that usage can be used to support bans. That ARs are physically common doesn't mean they are used. So does the danger of such weapons, if not 'used' overwhelm their simple existence in numbers in private hands (maybe 12 million)? An interesting take is found on this issue in the current issue of SWAT (1/19) in an Enemy at the Gate column by Kurt Hofman entitled: Weapons in 'Common Use'. He discusses this issue and two interesting paragraphs are: Quote:
Buy the issue of SWAT, by the way! And the beat goes on: https://www.summitdaily.com/news/reg...urt-challenge/ Reasonable self-defense allows bans, it seems.
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November 26, 2018, 02:10 PM | #2 | |
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That said, it would be a stretch to say the language lends itself to misinterpretation. It does that only when lower courts clearly don't want to do their jobs. The problematic phrase, IMHO, is the one that says existing anti-gun gun laws are "presumptively lawful." This does not say that all existing gun control laws are lawful under the Constitution. What it really says is, "We're not talking about or looking at those laws today so, for the moment, we'll presume that they are lawful until each has had its own day in court." In practice, rather than all those myriad other preexisting, "presumptively lawful" laws being evaluated in their own right, what is happening is that lower courts are adjudicating them as lawful with no examination under the pretext that Heller said they are lawful. I respectfully submit that this is not a "misinterpretation," it's a blatant lie. |
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November 26, 2018, 02:32 PM | #3 |
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Not going to go there. We have this discussion all the time. The reality is that the language is problematic either through malice or misintpretation. If you give your enemy an opening, that's what you have to think about when you write.
If you had to keep Kennedy on board and let in a weakness for that - that's a problem. I know folks don't like that view. Need to do it again?
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November 26, 2018, 03:38 PM | #4 | ||
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1. Self-defense is more congruent with the fact of the case the significance of which was the announcement that the right was is one held by individuals. I don't believe Heller sought a permit for his pistol to defend against tyranny. 2. The language in Heller didn't enable state restrictions since they existed well before Heller. 3. It allowed the idea of the legitimacy of some state and federal restrictions. It's the thin end of a wedge, and it received a majority. Quote:
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November 26, 2018, 07:46 PM | #5 | |
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You have to write an opinion. If it wipes out seven decades of federal firearm law, it isn’t going to be the majority opinion. So, you are necessarily going to have to write something that might be problematic later. If you don’t survive the gunfight, you don’t have to worry about how your trial might have gone. Honestly though, I don’t think it is possible to even write a principled, one-man dissent, Thomas-style, where you just lay it out there as straight as you can and still not have it willfully misinterpreted by some lawyer. |
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November 27, 2018, 09:35 AM | #6 |
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All I'll add to this is, it's a shame that the founding fathers cannot return to explain to all 535 in congress as well as those who sit on the SCOTUS bench as well as the Pres. and VP what the 2 ND amendment means as in its intended purpose.
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November 27, 2018, 10:20 AM | #7 | |
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November 27, 2018, 10:24 AM | #8 |
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What do you all think of Hofman's risk analysis of common usage? I'd be interested in a take on that.
Self-defense alone can be used to support weapons type bans in discussion and court decisions. Military style weapons are not necessary if ' five is enough' as sometimes mentioned here.
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November 27, 2018, 11:40 AM | #9 | ||
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Quote:
Quote:
https://www.supremecourt.gov/DocketP...3-petition.pdf
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November 27, 2018, 01:26 PM | #10 | |
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And the rationale has kind of a chicken or the egg quality to it as well. If handguns had been included in the NFA as originally intended, would Heller have protected handguns? I’m betting a $200 transfer tax from 1934-2007 would have made legally owned handguns a lot less common. If we applied the Heller/common usage test to machineguns circa 1934, would the NFA withstand scrutiny? Basically, I think Scalia was looking for historical precedent to show what types of arms are protected and he had already decided he wasn’t going to overturn the NFA. If we are to believe Stevens, he couldn’t have if he had wanted to. So he has to come up with some test that explains why one firearm is prohibited but another is protected by the Second Amendment. And being Scalia, that test has to be grounded in legal text, history, and/or tradition. |
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November 27, 2018, 02:09 PM | #11 | |
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The "long standing" test is equally troubling to me... ban phasers today... by the time they're invented the ban will be legal because it is both "long standing" and they're "not in common use", and can never be, since they're banned?
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November 29, 2018, 10:38 AM | #12 |
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Might want to consider how
https://thefiringline.com/forums/sho...d.php?t=599302 and a bump stock ban and turn in interacts with common usage and whether if this got to the current court, would they support the ban? But let's do that in the above thread, please.
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November 29, 2018, 12:02 PM | #13 |
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All through this thread, I can't shake the "common use" concept in the discussion from my mind. It sounds so ill-considered. What makes something fall out of common use?
If I take a FEG PA-63 to the range, I almost NEVER see another one out there so does that mean the pistol is not common use any more and I should give it up? As far as that goes, I don't get it out very much at all so that could mean that it's not even common use for ME. Extend that to any product and now we're talking about obsolescence being interpreted as falling out of common use. Cars, clothes, my toaster oven that I had 30 years ago, etc. And how far back to we go? Current generation of about 20 to 25 years? 50 or 100 years? I keep reading about people who believe that The Second Amendment was written to apply to muzzle loading guns only, as if THEY were considered "common use" but nothing after that should apply. It's all about opinion, of course. And opinions are formed in so many various ways, we could have a complete forum to take up the subject of opinions. The other thing that has bugged me about courts and especially SCOTUS is that they are supposed to interpret law, not make law. Additionally, SCOTUS is tasked with evaluating the constitutionality of laws. Ergo, "that law made by D.C. is not constitutionally valid, get rid of it." Although, there's a lot of merit with making sure they explain why some lawmaking body shouldn't try their hand at skirting a ruling by rewriting a law into something "new" SCOTUS should never try to overstep their bounds. It's a fine line, methinks and juggling it is a tough thing to do. I, too, have issues with adding language to sway an individuals vote because it compromises the integrity of the ruling but there we have it. Now we have a bad ruling we have to live with. Nevertheless, SCOTUS does find itself in the unenviable position of having to fix problems caused because of the INaction of our chicken-livered legislative bodies who are too afraid of making a decision that will get them unelected. Including the federal lawmakers. My opinion, of course. And obviously, I'm no legal expert so I want things to be simple. --Wag--
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November 29, 2018, 02:11 PM | #14 | |
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In the worst case this would mean that you have a weapon that's not constitutionally protected. That doesn't mean you should "give it up"; if there's no law against it, there's no issue. Further, the precedent is referring to classes of weapons, not model numbers. The FÉG PA-63 looks like a another semi-automatic pistol to me. It's every bit as protected as a Glock 19.
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November 29, 2018, 10:46 PM | #15 | |
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November 30, 2018, 08:53 AM | #16 |
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Clearly, the common use test is subject to abuse. The recent attempt by a politician to argue that mere possession isn’t enough to establish common use; but that it must also be demonstrated the firearm is regularly used is one example.
And then there’s the decision of several courts to basically say “Well, there have been 300 million guns made and that gun only makes up 20 million of them, so not common.” |
November 30, 2018, 09:23 AM | #17 |
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This could be the ammo makers' dream come true. Think of the guns you have sitting in the gun safe that you rarely shoot, maybe only take them out once a year to clean, and then put them away again. Now we have to actually shoot them on a regular basis so that they are "in common use." How often will it take to qualify as "in common use"? Monthly? Weekly? Who knows?
Stock up now to prepare for the next ammo shortage. You saw it here first ... |
December 6, 2018, 09:01 PM | #18 | |
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The right was descended from English law (granted it was also severely truncated in English law) Its been established that Automatic Weapons are infringed on and for all practical purposes illegal (cost of the gun and the license alone.....) and certainly not in general possession. As a modern tyranny would use machine guns, tanks, gas, etc, then to fight said tyranny we also need those same weapons. In a larger context though, we have Tyranny by other means. The ruling on use of immanent domain to build a hotel being legal. Clauses in contracts that completely give up your rights for basic services such that you can't even take it to court to win. Or, no seizure of property without due process and the drug laws allow exactly that. I may have free speech, but even if I employ it outside the work place to express a political view, I can be fired if my employer disagrees with me. Tyranny by a 1000 different methods is still tyranny.
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December 6, 2018, 09:06 PM | #19 | |
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That really kills the percentage of common. The reality is that use has been restricted from some time. And States do have rights as well. Somewhere in that mix is a logical compromise as its quite a muddled field.
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December 7, 2018, 12:26 AM | #20 | |
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But the McDonald case established that the 2nd Amendment applies to the states as well as to the federal government. So what's missing is a few good cases (before an objective, originalist, textualist Supreme Court) that clarifies the extent to which states can regulate (i.e. "infringe") the 2nd Amendment. Justice Scalia opined that the right to keep and bear arms is not unlimited (a point with which I disagree), but neither Heller nor McDonald made any attempt to define where the line is drawn between permissible regulation and unconstitutional infringement. |
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December 7, 2018, 04:23 PM | #21 |
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That is correct and unless and until it does, then states do have the right to regulate it.
You will find that in this day and age, few justices are agreeable to unlimited. So there will at the least be felons and hopefully mentally incompetent unable to. That said, having spent a lot of time on the gun range the last few years, I am in doubt as to what incompetent really means. Disciplined/safe gun owners are questioning the open end of it. You can cut that 30% down, how much? While its anecdotal, 10 to 20% is not out of line. I see at lest 25% who legally can own that should not. I see another group of 25% that needs training but will listen. Maybe 50% are safe gun handlers
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December 7, 2018, 04:35 PM | #22 | |
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December 7, 2018, 04:53 PM | #23 | |
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Fingers on triggers when not appropriate and zero muzzle awareness is way too common |
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December 7, 2018, 04:55 PM | #24 |
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https://www.washingtontimes.com/news...seys-law-limi/
https://thehill.com/regulation/court...city-magazines “New Jersey’s law reasonably fits the State’s interest in public safety and does not unconstitutionally burden the Second Amendment’s right to self-defense in the home,” said the court. https://www2.ca3.uscourts.gov/opinarch/183170p.pdf Some points in the decision: 1. It's about self-defense 2. Hi cap magazines are too dangerous 3. Limiting them does not impact home self-defense 4. It's just fine under Heller
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December 7, 2018, 05:24 PM | #25 | |
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