Why does SCOTUS refuse to take up any "Assault Weapons Ban" cases?

[zukiphile]

Originally Posted by Glenn E Meyer

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..

Glenn, you are correct. You are not my librarian. I just thought you might have had something specific and pertinent in mind.

I have not missed the misuse of Heller by lower courts. You know that because I've referred to it myself, and I've addressed that in this very colloquy. So, no, I haven't missed those "behavioral outcomes".

I have addressed your questions and position substantively and with candor. I'm not sure how that should draw allegations of insignificance and stupidity, but the point wasn't to trigger defensiveness.

[LogicMan]

Originally Posted by Glenn E. Meyer

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?

IMO, the misinterpreting crowd don't always use the language of Heller to win, they twist and misquote it and also demonstrate a lack of knowledge about firearms in order to rule as they wish. So to a degree they basically ignore the language, and the facts about guns, to rule as they please.

That said, there are parts of the language that don't help gun owners, such as the "reasonable restrictions" quote (which from my understanding Kennedy forced Scalia to add). Also the "in common use" comment, which can be interpreted in all manner of ways and the "dangerous and unusual" language.

All of those allow a court to make a stretch and rule that "assault weapons" are not protected, due to being "dangerous and unusual," not in common use, and such restrictions "reasonable." Applying Strict Scrutiny would mean all those parts of Heller would not be suitable to uphold an AWB law, so the judges just do not use Strict Scrutiny. You also get judges like the one for the Massachusetts ban who said that weapons such as the AR-15 were not what the Second Amendment were meant to cover, which as some have pointed out, would be like saying the First Amendment was never meant to cover modern speech and communication technologies (the great irony is that the Founders could very much have envisioned modern rifles, but they could not have envisioned things like iPads, cell phones, laptops, the Internet, television, etc...).

It will take a SCOTUS ruling that explicitly says that given that "assault weapon" is a made-up, arbitrary term to begin with, and that no one thus far has explained explicitly how the arbitrarily-chosen "military-style" features of such weapons make them so much more dangerous, or even how such features are "military" in the first place, that no ban on such weapons can be constitutional, that any and all such bans are the equivalent of a Hate Speech ban.

[zukiphile]

Originally Posted by Logicman

IMO, the misinterpreting crowd don't always use the language of Heller to win, they twist and misquote it and also demonstrate a lack of knowledge about firearms in order to rule as they wish. So to a degree they basically ignore the language, and the facts about guns, to rule as they please.

Indeed.

Originally Posted by Logicman

That said, there are parts of the language that don't help gun owners, such as the "reasonable restrictions" quote (which from my understanding Kennedy forced Scalia to add). Also the "in common use" comment, which can be interpreted in all manner of ways and the "dangerous and unusual" language.

Part of the "misinterpretation" has left people remembering parts of the decision that never were. There is no "reasonable restrictions" quote in the Heller majority decision, but people who would use a rational relationship test, the lowest level of scrutiny, to measure the constitutionality of restrictions might have preferred that. There are discussions of the part of Miller later cited in Lewis that sets forth a "reasonable relationship" to a well regulated Militia. The Heller court specifically disposes of the notion that this serves as the basis for its decision, stating,

The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

As to the other limiting language, two observations: 1) any court can find that ARs are not "in common use" or are "unusual" even though they may be the most common semi-automatic centerfire rifle, but a false factual finding isn't a defect in Heller, and 2) that limiting language had to be included.

At oral argument, Clemente was clear that if the Court were to see Heller's challenge as one that would strike the NFA, the government would oppose the challenge. Bring the NFA into the controversy, and Heller might have been an 8-1 decision with Thomas writing a lone dissent.

[thallub]

Contrary to the opinion expressed by some; Heller was not a resounding affirmation of our Second Amendment rights. Read EIII and footnote 26:

III

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[Footnote 26]

Footnote 26:

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

[zukiphile]

Originally Posted by Thallub

Contrary to the opinion expressed by some; Heller was not a resounding affirmation of our Second Amendment rights. Read EIII and footnote 26:

Given that the status of the right as one held by the individual and not in any way connected with militia service was disputed, the conclusion that the affirmation wasn't sufficiently emphatic is curious. The idea that full definition of the scope of the right would have been set by Heller betrays a fundamental naivete about what the court had before it in Gura's challenge.

The portion of the decision you quote details what the decision does not reach. Is the alleged flaw that Heller didn't overturn restrictions on possession by the mentally ill and felons, or carry inside government buildings?

[maestro pistolero]

" . . . 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."

I have come to believe this more and more. If I were one of four who might grant cert, but I knew or suspected we didn't have five to win, I would die of old age on the court before risking the burying of the right forever.

[dreaming]

Especially when waiting is likely to give Trump an appointment to SCOTUS that should provide a 5th pro-2a vote. That should be the mother of all cofirmation hearings.

[s3779m]

Originally Posted by dreaming

Especially when waiting is likely to give Trump an appointment to SCOTUS that should provide a 5th pro-2a vote. That should be the mother of all cofirmation hearings.

I can't wait for this to happen. I find it hard to believe the justices can not follow the clear cut meaning of the 2nd. Had hillary been elected, we would be looking at a totally different meaning of the 2nd, one none of use would welcome.

[Aguila Blanca]

Originally Posted by s3779m

I find it hard to believe the justices can not follow the clear cut meaning of the 2nd.

How can it be hard to believe? The votes on both Heller and McDonald were 5-4. Read the dissenting opinions on both. The level of intellectual dishonesty will leave your head spinning.

The truth is, even Heller didn't get it right. Not for the reason Hillary said, but because in the majority opinion Mr. Scalia said the 2A is like the other rights in the Bill of Rights and is subject to reasonable regulation. It isn't. It says right in the 2A that the RKBA "shall not be infringed." What does "infringe" mean? Regulation IS infringement.

How's that for clear cut meaning?

[zukiphile]

Originally Posted by Aguila Blanca

... but because in the majority opinion Mr. Scalia said the 2A is like the other rights in the Bill of Rights and is subject to reasonable regulation.

He didn't actually write that. See post 29 and 30 above.

Originally Posted by Aguila Blanca

How can it be hard to believe? The votes on both Heller and McDonald were 5-4. Read the dissenting opinions on both. The level of intellectual dishonesty will leave your head spinning.

It may be worse than that.

A person who lies intends to deceive you, but implicitly admits the truth of your position. However, a person who is wrong but convinced that he is telling the truth is a harder puzzle to solve. Justices who genuinely believe that the text of the Constitution doesn't constrain them may be worse than someone just looking for a work around to get the decision he wants.

That said, a reader can get the sense that a justice knows he is setting forth a terrible argument sometimes. In McDonald v. Chicago, take a look at Scalia's concurrence; it is mostly a critique of John Paul Stevens' analysis. JPS knew that Scalia's concurrence would be issued, but JPS and his staff though it would still be good to publish.

[Glenn E. Meyer]

What would happen if Hillary became elected is off topic.

Let's not go there. Thanks

Such deleted.

[s3779m]

How can it be hard to believe? The votes on both Heller and McDonald were 5-4. Read the dissenting opinions on both. The level of intellectual dishonesty will leave your head spinning.

The truth is, even Heller didn't get it right. Not for the reason Hillary said, but because in the majority opinion Mr. Scalia said the 2A is like the other rights in the Bill of Rights and is subject to reasonable regulation. It isn't. It says right in the 2A that the RKBA "shall not be infringed." What does "infringe" mean? Regulation IS infringement.

How's that for clear cut meaning?

Exactly my point. How did four sc judges get it wrong. What could they possibly see in "shall not be infringed" that would allow bans??? or "reasonable regulation"

[Glenn E. Meyer]

The level of intellectual dishonesty will leave your head spinning.

On most politically and ideologically loaded social issue decisions, there are split decisions and dissents. If you don't agree with the decision, it is easy to call it intellectually dishonest. Recall that the judges make their decisions on an interaction of past precedent, current changes in social views and their own views. That mix produces something that you might think is intellectually dishonest, when you lose.

So I agree that Scalia was intellectual brilliant on one such decision I agree with and intellectually dishonest and incorrect on another major socially loaded decision, I disagree with. How to parse that? It's his fundamental beliefs that drive him and my personal social views drive mine. It's very simple.

[BBarn]

Originally Posted by Glenn E. Meyer

Recall that the judges make their decisions on an interaction of past precedent, current changes in social views and their own views.

A judge that makes decisions that way is in violation of the judicial Code Of Conduct. That would also explain the decisions of some judges.

[publius42]

Exactly my point. How did four sc judges get it wrong. What could they possibly see in "shall not be infringed" that would allow bans??? or "reasonable regulation"

At the time the amendment was written, men were required to own certain weapons and ammo for militia service. It's the opposite of what's considered "reasonable regulation" today, but if you dictate my firearm choices for whatever reason, isn't that an infringement?

Also at that time, they had rules about where you could store powder. These were for fire safety reasons, but again, if you tell me where I can store my powder for whatever reason, isn't that an infringement?

Then as now, we had/have rules about firing guns in towns because morons celebrating New Year's Eve or something end up shooting someone or damaging property by firing into the air. But if you tell me I can't shoot my guns up into the air in town for whatever reason, isn't that an infringement?

I think the answer to my three questions is yes in every case, so the people who wrote the amendment felt that some regulations were not infringements.

[LogicMan]

I haven't yet read Stevens's dissent in the Heller decision, but given the utter ignorance he displays about guns and the Second Amendment in his book that he wrote on five amendments he recommends, I would not be shocked if he shows some real intellectual dishonesty in his dissent. Basically, he talks about "assault weapons" without bothering to even address the meaning of the term, he just talks about them as if they are a solid thing, and not some arbitrary definition like hate speech for example. Then he talks about how 30,000 die every year from guns, without bothering to explain how two-thirds of those are suicides and it is very questionable to say guns play any significant role given how other countries with no guns have higher suicide rates, such as Japan and South Korea. Or that of the one-third that are homicides, how many of those are due to inner-city gang violence, which is a complex issue on its own. Given that level of cluelessness, I can't say I would have much faith in his ability as a jurist to make any kind of honest assessment about the Second Amendment.

Originally Posted by Glenn E. Meyer

Recall that the judges make their decisions on an interaction of past precedent, current changes in social views and their own views.

Well a lot of them do, but they are not supposed to. It was a popular social view in the 1930s that we had to get rid of the "deficient" and "lesser" people, due to the (pseudo)science of eugenics. Forced sterilization was ultimately upheld by a SCOTUS ruling. Maybe someday it will become a popular social view that "hate speech" can be banned. No judge should make a decision based on what is a popular social view.

[Frank Ettin]

Originally Posted by Glenn E. Meyer

On most politically and ideologically loaded social issue decisions, there are split decisions and dissents. If you don't agree with the decision, it is easy to call it intellectually dishonest.....

And it's easy to fall prey to some sort of "magical thinking." Often folks who really don't understand things will resort to some type of "magical thinking" to explain what to them is unexplainable. So folks who don't understand how the solar system works attribute a solar eclipse to a dragon swallowing the sun, or some such thing. Similarly to some folks court decisions they don't like, or election results they don't like, or legislative actions they don't like must be because things are corrupt, or things are rigged, people are dishonest, or there's some mysterious conspiracy behind it all.

And sometimes one's definition of "intellectual dishonesty" is heavily influenced by whose ox is gored. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Originally Posted by zukiphile

....Justices who genuinely believe that the text of the Constitution doesn't constrain them may be worse than someone just looking for a work around to get the decision he wants....

Post Heller/McDonald Second Amendment court decisions certainly have been a mixed bag. Some judges have, we pro-RKBA types think, gotten it (and some of those judges have not historically been considered friends of the Second Amendment). There have been some excellent, when viewed from a pro-RKBA perspective court decisions applying Heller and McDonald the way we, in this camp, think those cases should be applied. For a few examples --

• In Tyler v Hillsdale County Sheriff's Department (Sixth Circuit, No. 13-1876) a panel of the Sixth Circuit ruled, essentially, that in order for a mental health confinement to be a disqualifying condition there needed to be a way for a prohibited person to later demonstrate fitness to possess a gun. Unfortunately an en banc hearing was granted vacating the panel's opinion.
  
  
• In a case called Mance v. Lynch (No. 15-10311) a District Court basically tossed out a provision of the GCA which prohibited a person from buying a handgun from an FFL in a State other than his State of residence. But it lost in the Fifth Circuit.
  
  
• The original Peruta decision by the 9th Circuit panel tracked very nicely with what I think it a proper reading of Heller, but that got superseded by a weasley, anti-RKBA en banc decision.
  
  
• There have been a few others with the gold star going to the 7th Circuit decision written by Posner in Moore. That decision effectively forced Illinois to enact a "shall issue" law.

But a lot of other judges, while they claim to be following Heller and McDonald have been applying what I think are spurious readings of those cases. Heller and McDonald were dramatic rebukes to what was, until those cases, dogma. Heller and McDonald were major paradigm shifts, and major paradigm shifts tend to be threatening. In hindsight, a predictable response would be a stubborn intransigence and a strong push back.

I think we're seeing massive resistance in some courts to Heller and McDonald -- denial and an unwillingness to go down the path that Heller and McDonald set us on. As a result, we're seeing some ridiculous decisions.

Heller and McDonald were "game changers." There have been other SCOTUS decisions which also fairly radically changed accepted paradigms . Brown v. Board of Education comes to mind; Miller v. California, Engel v. Vitale, Miranda and Roe v. Wade might also fall into that category. There are probably others.

It would be interesting to identify some of these "game changing decisions" and look at the litigation following them. Is there evidence of a reluctance to embrace a new view of the subject? Do post "game changer" decisions generally manifest symptoms of denial, disbelief, intransigence? Is there a law student out there looking for a law review project?

Since Heller/McDonald courts and legislatures have to varying degrees been uncomfortable with and resistant to the implications of the Second Amendment as a broad protection of an individual right to keep and bears arms. Many people, including gun owners as evidenced by posts on the board, are seriously troubled by the possibility of an unlimited right to keep and bear arms. But that's not new, and the history of First Amendment jurisprudence is replete with example of courts and legislatures having to face, sometimes unsuccessfully, the implication that freedom of speech protects pornography and despised social and political viewpoints.

[Frank Ettin]

Originally Posted by LogicMan

I haven't yet read Stevens's dissent in the Heller decision,...

But you're nonetheless going to share with us your guesses about what he said in that dissent?

Originally Posted by LogicMan

...in his book that he wrote on five amendments he recommends,...

Exactly what book is that? Does it have a title?

Originally Posted by LogicMan

...Basically, he talks about "assault weapons" without bothering to even address the meaning of the term, he just talks about them as if they are a solid thing, and not some arbitrary definition like hate speech for example. Then he talks about how 30,000 die every year from guns, without bothering to explain how two-thirds of those are suicides and it is very questionable to say guns play any significant role given how other countries with no guns have higher suicide rates, such as Japan and South Korea. Or that of the one-third that are homicides, how many of those are due to inner-city gang violence, which is a complex issue on its own.....

Where in that book did he say those things?

[Frank Ettin]

Conspiracy theories and incomprehensible blather starting to show up. Time to call it a day.