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April 7, 2018, 10:33 PM | #1 |
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Why does SCOTUS refuse to take up any "Assault Weapons Ban" cases?
So this thought struck me while typing a response in the Massachusetts AWB thread, but does the SCOTUS just decide this based on a simple majority vote the way they decide cases? Because if so, that likely means that the dissenting vote is Justice Kennedy. But if Kennedy is for striking down the bans or upholding them, then what would be his concern? He'd get to essentially decide the case either way, right?
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April 8, 2018, 12:05 AM | #2 |
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It only takes four votes to grant cert on a case. We know Ginsburg, Sotomayor, and Breyer are against even the limited ruling in Heller. We have no solid basis for conclusion on Kagan; but she is likely anti. So there are probably four votes to grant cert if they thought a ban would be held up by SCOTUS.
On the pro-Heller majority, we know Thomas and Gorsuch favor granting cert on an AWB case. So our mystery Justices are Alito, Roberts, Kennedy and (maybe) Kagan. I think it is safe to say at least two of the Heller majority wants to wait and see what the lower courts come up with before accepting an AWB case. So, it isn’t just Kennedy. However, it is possible that some of the Justices aren’t granting cert because they know one of the Heller majority is borderline and don’t want to take that chance. |
April 8, 2018, 11:32 AM | #3 | ||
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We cannot ignore the possibility that some of the Heller majority members like Alito or Roberts actually feel that Heller went far enough. A handgun for self-defense of the home might just fit what they think is protected. It is reasonable that they think Kennedy will turn against gun rights if they were to attempt to negate state bans.
Supporting gun rights does not have to be dichotomous for NO guns, ALL guns. We don't know. Here's something I found on Kagan, if it is useful: Quote:
https://www.theatlantic.com/politics...really/277401/ From the article: Quote:
For example, Morning Joe Scarborough (blah) has proclaimed the 2nd isn't about hunting and then switched. I heard him say one morning that you don't need a AR-15 loaded with a clip of 30 cop killer bullets to go hunting with your son. Here's some history (is this source credible): http://www.breitbart.com/big-journal...t-gun-grabber/ Note that here and other places, Morning Joe credits the Constitutinality of an AWB to Scalia's prose in Heller. That's a note for the Heller fans who try to dissect the decision as not to support such bans. It certainly is being used that way in the public domain and in the lower courts. You can write tons of electrons on the gun forums saying it ain't so, Joe - but the outcomes are what counts.
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April 8, 2018, 12:45 PM | #4 | ||||
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The outcome of a decision is not all that counts. Heller itself demonstrates that given the subsequent history with DC and Chicago. The power and persuasion of the reasoning will also have a bearing its influence. Looking to the future, this means that transforming Thomas and Gorsuch from a weak minority into part of a stronger majority on this issue should be an electoral priority. Quote:
There is a specific philosophy about how justices should approach interpretation of COTUS text. Candidacies who would choose justices who can do that should be supported so we don't have to prophylactically deny cert. I see pictures of Clarence Thomas and sort of wish he would take better care of himself.
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April 8, 2018, 05:45 PM | #5 | |
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To quote Hamilton from Federalist Paper #84: "For why say that things shall not be done for which there is no power to do?" |
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April 8, 2018, 07:07 PM | #6 | |
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Put differently, it isn't that she doesn't know something you and I know, but that she doesn't believe some things about humanity that you and I believe. Being very smart isn't a substitute for beginning from the correct premises.
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April 9, 2018, 07:30 AM | #7 | |
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As for the rest, any prediction I could make would be worth the electrons used to project it on your screen and not much more. Let's remember that Souter (who'd been sold to GHW Bush as a "slam dunk" for conservatism) sided against us in Heller.
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April 9, 2018, 07:42 AM | #8 |
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Wel Trump should have the opportunity to appoint more conservative Justices to the SCOTUS soon. This could be his most significant action of his Presidency!
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April 9, 2018, 10:39 AM | #9 | |
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How exactly are the lower courts using Heller? I really want to know. If the 2nd Amendment is an individual right, then the lower courts should treat it as such, like the 1st Amendment, right? |
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April 9, 2018, 11:23 AM | #10 | |
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April 9, 2018, 09:08 PM | #11 |
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Since this is mere speculation, I'll add my $.02 worth. I think that BOTH sides are kicking the can down the road because of Justice Kennedy. The liberal justices don't want to grant cert on a 2nd Amendment case because they're afraid Kennedy will again side with the conservatives and strike down, say, an assault weapons ban. OTOH, the conservatives are aware that they may not have Kennedy's support for upholding the 2nd Amendment in an assault weapon ban or public bearing case, so won't vote for cert until he is replaced with a more reliably originalist justice.
The ultimate answer is, only the nine know for sure, and maybe not even all of them! The drama continues.....
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April 10, 2018, 09:05 AM | #12 |
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The kicker in the game is that folks want a 'conservative' justice and sometimes that person is an unpleasant surprise for those predicting ideological purity.
I suppose that could happen for a liberal justice also. To ATN - one has to look at the lower court decisions on upholding state bans to find language using Heller as support. We have them all over the forum or they can be googled. Now some say that they are misinterpreting Heller and Scalia's wisdom and thus it was a good decision. However, I tend to think about outcomes. If the misinterpreting crowd can use the language and win the day - that's what counts. It also means that the language, while seen as wonderful, had the risk of misinterpretation and that what was bad about it. Some don't see that. Words on paper and the actual real world behavior need to be looked at carefully. If you have to turn in your mags and AR with a justification from Heller, guess what counts from that decision?
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April 10, 2018, 09:25 AM | #13 |
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I expect the justices have some idea of how they might vote. However it is unlikely they have articulated it to the particular points of law that will be brought up in arguments and it would be somewhat irresponsible if they had. They don't really know, with certainty, how they will vote let alone how their colleagues will vote. It should also be noted that while their rulings are expected to be matters of law and based on law they are not free from political opinions.
It could be that they, from a political perspective, fear the outcome of an unknown ruling that would make the issue clear and simply wish to continue the status quo on the issue. |
April 10, 2018, 09:31 AM | #14 | |
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It is the behavioral outcome that counts - meaning whether YOU go to jail based on some interpretation.
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April 10, 2018, 09:44 AM | #15 | |||
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A justice who supports finding new rights where none are written and dismissing explicit limits because the COTUS is a "living document" may be expected to continue that line of thought in their decisions. A justice who supports interpreting the COTUS according to the public understanding of the ratified text is more likely to continue that line of thought in his decisions. Only one of those schools of interpretation has resulted in the affirmation of an individual 2d Am. right as expressed in Heller. Describing justices as liberal or conservative is overly political and misses the point of the differences in interpretive schools. Scalia wrote in strong defense of the rights of criminal defendants. Is that liberal or conservative? Or did he just have a "gut" affinity for criminal defendants? Merrick Garland showed a relative weaker argument for defendant's rights while also having slight regard for principled limits on the scope of federal government. What does that make him? Quote:
The movement to read the 2d Am. according to the publicly understanding of the text of the amendment comes from a fairly specific Society of attorneys and judges. At a national level, we've yet to see the political "liberal" candidate who would commit to nominating judges from that Society. I'll be happy to see it if it does happen.
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April 10, 2018, 10:06 AM | #16 | |
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IMO: Folks are reading too much into reason/s Second Amendment cases are not heard. There is the problem of caseload. Each term 7,000-8,000 cases are appealed to SCOTUS. SCOTUS hears about 80 cases each term: That's about one percent.
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April 11, 2018, 08:12 AM | #17 | |
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April 11, 2018, 08:45 AM | #18 | |
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Gorsuch is 50, give or take. He has certainly brought his own inclinations and prejudices to legal issues when he first encountered them; that's how people learn. However, his inclinations have also been formed by what he learns about the law. The process is often referred to as a hermeneutic circle of understanding. We look at individual trees to better understand the forest, and our idea of the forest yields a better understanding of the trees in it. To suppose that this middle aged man has an opinion that is at odds with or not accurately represented by his expressed legal analysis, and simply writes a rationale to justify a nebulous "gut" feeling misses much of what Supreme Court justices as well as lower court judges do. I've seen judges decide cases in ways personally distasteful to them, and I've seen them turn the law on its head because they wanted to do something they shouldn't. Judges surely have personal biases, but it is generally too simplistic to dismiss what they do as a mere expression of personal bias.
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April 11, 2018, 09:59 AM | #19 |
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When SCOTUS judges are analyzed for appoitnment according to their ideological purity on major social issues, that is a major part of the variance. As I said, research into such decisions indicates that ideology is a powerful factor.
Now a legal professional may not be comfortable with such a view. That has little practical significance. Since decisions are complex, dismissing the factor as a major play is stupid. When Heller was decided, you had a 5 to 4 split, you have justices denouncing the 2nd Amend. in the past and present. Given the laws and precedents stand as written, what causes these seemingly intelligent people to come to diametrically opposed views of the world? It is the same with other social issues, not to debate their validity, gay marriage or abortion. Wildly different views, expressed with personal intensity. Why is that? We will see who misinterprets the outcomes based on the behavioral consequences? Will state bans ever be overturned or will such continue? If a federal ban comes into place due to a change in the legislature, will it be supported? If it is, will Scalia still be quoted. It is sheer folly and a lack of really understanding decision making to argue the decision was great as it could be easily misused. We should have won because we had a great game plan - not a good excuse, Coach.
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April 11, 2018, 11:21 AM | #20 | |||||||||
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Although you label your view as practical, its practical value to you appears to be as a reason to disregard the text of decisions in favor of the imputed emotions. The problem with your view isn't discomfort amongst attorneys and judges (an imputed and non-intellectual motive). Quote:
That's the interpretive difference between a justice who would look to the original public meaning of the text of the 2d Am. and one who would examine extra-constitutional social "science" to shape public policy. That is a difference in method, not emotion. Quote:
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Moreover, despite requests you've not identified the part of the decision you think is so easily misused. Quote:
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April 11, 2018, 11:54 AM | #21 |
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We will see, won't we. The outcome will decide. You continue to miss the behavioral outcomes that are occurring now.
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April 11, 2018, 12:06 PM | #22 | ||
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April 11, 2018, 12:10 PM | #23 |
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That's a really incredible comment. Continue to hold your beliefs in the face of outcomes.
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April 11, 2018, 12:16 PM | #24 | |
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Glenn, that you find the comment incredible isn't informative. Why wouldn't a person maintain a superior indicator of the manner in which a justice would resolve an issue?
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April 11, 2018, 12:20 PM | #25 |
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I'm not your librarian. They have been discussed in depth for the different state legislative actions and lower courts deicsions along rhetoric from political and media sources..
They continue to cite portions of Heller to justify state bans now and proposed actions.
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