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April 11, 2018, 12:47 PM | #26 | |
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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.
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April 12, 2018, 12:22 AM | #27 | |
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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. Last edited by LogicMan; April 12, 2018 at 12:31 AM. |
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April 12, 2018, 05:57 AM | #28 | |||
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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.
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April 12, 2018, 07:29 AM | #29 | ||
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Contrary to the opinion expressed by some; Heller was not a resounding affirmation of our Second Amendment rights. Read EIII and footnote 26:
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April 12, 2018, 08:03 AM | #30 | |
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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?
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April 12, 2018, 09:47 AM | #31 |
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" . . . 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. |
April 12, 2018, 07:53 PM | #32 |
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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.
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April 13, 2018, 08:13 AM | #33 |
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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.
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April 13, 2018, 08:32 AM | #34 | |
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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? |
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April 13, 2018, 10:18 AM | #35 | ||
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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.
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April 13, 2018, 12:00 PM | #36 |
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What would happen if Hillary became elected is off topic.
Let's not go there. Thanks Such deleted.
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April 14, 2018, 02:27 AM | #37 | |
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April 14, 2018, 10:11 AM | #38 | |
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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.
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April 14, 2018, 01:56 PM | #39 |
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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.
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April 15, 2018, 05:41 AM | #40 | |
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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. |
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April 15, 2018, 05:52 AM | #41 | |
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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.
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April 15, 2018, 03:48 PM | #42 | ||
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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. Quote:
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.
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April 15, 2018, 03:58 PM | #43 | |||
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April 15, 2018, 05:34 PM | #44 |
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Conspiracy theories and incomprehensible blather starting to show up. Time to call it a day.
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