The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools Search this Thread
Old July 2, 2022, 07:12 PM   #26
zukiphile
Senior Member
 
Join Date: December 13, 2005
Posts: 4,277
Quote:
Originally Posted by 44 AMP
I see these rulings are not about the fundamental issues involved, directly, they are about correcting "procedural errors" in the way the state or Federal govt has addressed those issues. Things like exercising authority not specifically granted in law, primarily.
Certainly, the most fundamental aspect, existence of the individual right, was clarified in Heller. Yet the clarification in NYSRPA went beyond mere procedure and clarified the standard for lower courts to apply in detailing the limits of the right and remaining state power. I would describe that part as substantive.

I have sympathy for the misguided optimism about how far and how quickly the legal protection of the right will expand. With the remand orders we should see magazine limits and "assault weapon" bans fall, but our experience tells us that the distance between should and will can be immense.

Last edited by zukiphile; July 2, 2022 at 08:52 PM.
zukiphile is offline  
Old July 2, 2022, 09:03 PM   #27
Aguila Blanca
Staff
 
Join Date: September 25, 2008
Location: CONUS
Posts: 17,744
Both New York and California are responding to the NYSRPA decision by enacting new laws that make pretty much anywhere within a city "sensitive" (and thus prohibited) places: public transportation, sidewalks, ... Then there are the hops they're adding that have to be jumped through to get a carry permit.

Given the specific language in the decision about NOT making it prohibitively expensive or difficult to obtain a permit, it's unlikely that most of these new requirements will withstand judicial review. But ... it will take years before new cases can make it before the Supreme Court. By that time, Thomas may no longer be there, so it'll be a brand new ball game.
__________________
NRA Life Member / Certified Instructor
NRA Chief RSO / CMP RSO
1911 Certified Armorer
Jeepaholic
Aguila Blanca is offline  
Old July 2, 2022, 09:47 PM   #28
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,863
Quote:
Originally Posted by Aguila Blanca
Given the specific language in the decision about NOT making it prohibitively expensive or difficult to obtain a permit, it's unlikely that most of these new requirements will withstand judicial review. But ... it will take years before new cases can make it before the Supreme Court. By that time, Thomas may no longer be there, so it'll be a brand new ball game.
A Grant, Vacate, Remand order (GVR order) is typically used, as with the four 2A cases, when there has been a change in legal circumstances after a lower court decision. Not only did the Supreme Court issue a subsequent precedential ruling in NYSRPA which the lower courts will have to apply in reaching new decisions on the cases, but subsequent changes to laws enacted by some of the states will also now have to be considered by the lower courts.

Hasty changes to state laws may be great PR moves, but will probably not achieve the legal result politicians claim.

Last edited by gc70; July 2, 2022 at 11:44 PM.
gc70 is offline  
Old July 2, 2022, 10:31 PM   #29
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,512
It could take years to resolve these new laws but there’s the option to go straight to the SCOTUS and by pass all the bull like so many social justice cases seem to do . Keeping in mind the court is tired of the s 2nd amendment being a second class right so they may be inclined to take cases right away
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old July 3, 2022, 12:05 AM   #30
Aguila Blanca
Staff
 
Join Date: September 25, 2008
Location: CONUS
Posts: 17,744
Quote:
Originally Posted by Metal god
It could take years to resolve these new laws but there’s the option to go straight to the SCOTUS and by pass all the bull like so many social justice cases seem to do .
And how is that done?
__________________
NRA Life Member / Certified Instructor
NRA Chief RSO / CMP RSO
1911 Certified Armorer
Jeepaholic
Aguila Blanca is offline  
Old July 3, 2022, 02:35 AM   #31
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,554
Quote:
like so many social justice cases seem to do .
SEEM to do....

I think that it right there, seem to do...Very few cases are news items UNTIL they reach the Supreme Court.

The Supreme Court is not a trial court. They don't rule on the facts of a case or the guilt or innocence of the defendant. They rule on lower court decisions and points of law involved.

For that to happen, there must be a case tried in a lower court first. And normally more than one court ruling is involved during the appeals process. There must be at least two courts, the trial court and the court of appeal (the next higher level - Circuit court, District Court, etc ) before a case could go before the Supreme Court. And then they get to decide if they will hear the case.

Cases can even go back and forth at the appeals level more than once before reaching the Supreme Court level.

There is no "direct path" to the Supreme Court. The system doesn't work that way. If it SEEMS otherwise, that is the result of news coverage not being "cradle to grave" complete (or accurate).

The original trial may be in the news, for a time, and even the appeals court's rulings make the news, for a time. But Supreme Court cases are always news, and covered constantly until there is a ruling. How much coverage depends on how big a "hot button" the issue is.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old July 3, 2022, 03:24 AM   #32
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,512
44 has it . Once there’s a ruling against , we appeal directly to the scotus . It’s been done many times in history. Sorry didn’t mean to say we appeal a legislated law .

Let me ask this why does the scotus only take appeals of lower court rulings . Why can’t they read the text of a law and simply say , no no that’s clearly unconstitutional or clearly goes against what we just clarified?
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old July 3, 2022, 06:36 AM   #33
zukiphile
Senior Member
 
Join Date: December 13, 2005
Posts: 4,277
Quote:
Let me ask this why does the scotus only take appeals of lower court rulings . Why can’t they read the text of a law and simply say , no no that’s clearly unconstitutional or clearly goes against what we just clarified?
The same reason other courts also don't.

Courts decide cases and controversies amongst parties. For a court to be able to decide something, someone needs to file in that court and against someone else.

It replaces the mechanism in which someone who wrongs you has it taken out of his hide by you directly. It isn't supposed to be a grand ayatollah who gives you unsolicited advice on how to make yourself right with the cosmos.
zukiphile is offline  
Old July 3, 2022, 10:56 AM   #34
Aguila Blanca
Staff
 
Join Date: September 25, 2008
Location: CONUS
Posts: 17,744
Quote:
Originally Posted by Metal god
44 has it . Once there’s a ruling against , we appeal directly to the scotus . It’s been done many times in history. Sorry didn’t mean to say we appeal a legislated law .
I still think you have it wrong, but the attorneys present can correct me if I'm off base.

Cases involving violation of a state law are first prosecuted in a state court. If the alleged perpetrator loses, he/she then appeals to a state court of appeals and, if they lose there, to the state's supreme court.

If they still lose, and if they believe the law is unconstitutional, AND if they have deep pockets or can interest some national organization in their case, they can then appeal the state law to a federal district court. Or anyone with an objection to a federal law can directly file a federal lawsuit in a federal district court. Either way, if the petitioner loses in the district court the next step is the circuit court of appeals, NOT the Supreme Court. I have never heard of a way to appeal directly to the Supreme Court following a loss at the district court level.

You wrote that it has been done "many times." In what cases has it been done?
__________________
NRA Life Member / Certified Instructor
NRA Chief RSO / CMP RSO
1911 Certified Armorer
Jeepaholic
Aguila Blanca is offline  
Old July 3, 2022, 01:33 PM   #35
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,554
Quote:
Why can’t they read the text of a law and simply say , no no that’s clearly unconstitutional or clearly goes against what we just clarified?
Because that's not their job.

And, it never has been.

First off, there has to be a case, a case brought by someone who has standing to bring suit, AND had a claim of having been harmed (or would be harmed) by the law in question. THEN that case gets tried at the state level, and the process goes on the way AB described it, until/unless the plaintiff gives up, or the Supreme Court hears it and makes a ruling.

Look at the Heller vs DC case for one example. In that case, it took YEARS, just to find someone who had standing (Lived in DC) AND had a case that their virtual handgun ban harmed him. No "state level" (in that case DC) could even be filed until someone with both standing and a claim to harm was found and filed suit. (IIRC, it took about a decade before anyone meeting the requirements and willing to file suit was found) AND, was someone who could keep the appeals open until the case finally reached the high court.

you, or I, (or the rest of the country) may read a CA or NY or other state law and clearly see its nuts, its unconstitutional, its wrong etc., but if we don't live in that state, we don't have standing to file suit about it.

Federal law, we do have standing, since we live in the US, BUT standing alone isn't enough. There must be some claim of harm, and that claim is not, and will not be recognized until the verdict of the (lowest level) court on a case filed there.

The Supreme Court is not, and never was any kind of watchdog. Its not their job to tell Congress what to write or not write into a law. Nor is it their job to correct (or even explain) when any other segment of the govt misinterprets their rulings, UNTIL a case about that comes before them.

Our legislators and our administrators at all govt levels are supposed to be smart (and honest) enough to do their own research, and not write or do things they know are not Constitutional. Sadly, seems like too many are not, either from ignorance, or by intent.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old July 3, 2022, 01:49 PM   #36
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,863
In the past, there were limited circumstances in which cases could be appealed directly from a District Court to the Supreme Court. The most familiar such case is probably United States v. Miller, which was an "APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS." Cases can no longer go to the Supreme Court in that manner.

Some would consider appeals of constitutional issues from the highest Court in a state to be a "direct appeal" because such cases do not go through the lower federal courts. The Supreme Court describes the process as "Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue)." While some state cases may not go through the lower federal courts, they have gone through equivalent state court systems that would hardly seem to be "direct" appeals to the Supreme Court.

Article III, Section 2, Clause 2 of the Constitution gives the Supreme Court both original jurisdiction and appellate jurisdiction. The Supreme Court's authority to act as a trial court of original jurisdiction is limited to "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Congress has granted lower federal courts concurrent jurisdiction for most of those cases, which are generally routed to the lower courts rather than the Supreme Court. Actual Supreme Court cases of original jurisdiction are rare.
gc70 is offline  
Old July 4, 2022, 12:31 PM   #37
Brownstone322
Senior Member
 
Join Date: June 18, 2017
Location: Virginia, USA
Posts: 277
Quote:
Originally Posted by 44 AMP View Post
For whom???
It's gonna put an end to these arbitrary laws once and for all.

If you know your judicial history, you already know that the high court has, on more than one occasion, declined to hear bans on "assault weapons" and "high-capacity" magazines, the two of which invariably go together. And I've always believed I knew why — because gun-rights supporters on the court didn't feel comfortable with the rest of the bench, including Roberts.

But that has changed. It's simply a matter of time before the court hears an equivalent appeal from one of the circuits, and that's gonna be the end of it.

How was I not clear about that the first time?
__________________
"To me it doesn't matter if your hopes are dreams are shattered." -- Noel Gallagher
Brownstone322 is offline  
Old July 4, 2022, 04:00 PM   #38
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,554
I applaud your optimism, and I hope the Supreme Court does do away with all the BS gun control laws, but I'm realistic enough not to count on it.

Not because they wouldn't do what is right, but because of our system, and that system restricts the court to only acting on cases that come before them.

I'd love to see the entire NFA 34 go away. But I'm not holding my breath about it, or other long standing gun control laws being overturned by the current court. Some (more) gun control laws MIGHT BE, and that I would count as a good thing, but there has to be a specific case brought to the Supreme Court, before they can act.

And, while today's court seems favorable to the rule of common sense about a number of things, the makeup of the court WILL change again in just a few more years. I hope more good will come from the current court before that happens, but it will happen, and we could wind up back where we have been, for a long time to come. Or, possibly even worse. Also possible it COULD get better, but again, I'm not holding my breath.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old July 4, 2022, 06:49 PM   #39
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,512
Quote:
Not because they wouldn't do what is right, but because of our system, and that system restricts the court to only acting on cases that come before them.
Isn’t that true for other courts as well ? With these new guidelines, I don’t see how we don’t start seeing most Of these laws fall . I’m not sure what you mean by you are realistic ? Are you saying you’re expecting the lower courts to ignore the Supreme Court’s precedent
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old July 4, 2022, 10:17 PM   #40
Aguila Blanca
Staff
 
Join Date: September 25, 2008
Location: CONUS
Posts: 17,744
Quote:
Originally Posted by Metal god
Are you saying you’re expecting the lower courts to ignore the Supreme Court’s precedent
Look what the lower courts did with Heller and McDonald. I don't expect them to "ignore" NYSRPA, but I do expect them (some of them, like the 2nd Circuit and the 9th Circuit) to play games with it, crafting decisions that they claim are in conformance while actually doing just the opposite of what NYSRPA intends.
__________________
NRA Life Member / Certified Instructor
NRA Chief RSO / CMP RSO
1911 Certified Armorer
Jeepaholic
Aguila Blanca is offline  
Old July 4, 2022, 10:24 PM   #41
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,554
I think I am realistic in that I expect the lower courts to rule exactly as they have been, each according to the judgement of the individuals who are judges, as they understand their obligations as judges.

Some are, and I expect will remain, "activist" judges, who rule in favor of what they believe should be, and will interpret the law in that light.
Others will strictly adhere to the law and established precedents.
And others will be somewhere in between.

Personally, I don't expect people to be other than they have proven themselves to be, and we find people of all persuasions throughout all levels of our govt, just as we do in society in general.

Some are idiots entirely and strictly bound to their personal ideologies, and some are more reasonable, generally.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old July 5, 2022, 12:29 AM   #42
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,863
Quote:
Originally Posted by Aguila Blanca
Look what the lower courts did with Heller and McDonald. I don't expect them to "ignore" NYSRPA, but I do expect them (some of them, like the 2nd Circuit and the 9th Circuit) to play games with it, crafting decisions that they claim are in conformance while actually doing just the opposite of what NYSRPA intends.
Lower court judges inevitably test the boundaries of Supreme Court decisions. Such challenges usually lead to the healthy growth of the law as lower courts learn from the Supreme Court.

Unfortunately, Heller and McDonald were not enforced by the Supreme Court for over a decade. While not personally keeping tally, I have read that the Supreme Court rejected 140 petitions for 2A cases in the 12 years between McDonald and NYSRPA. Much has been written about the Supreme Court declining cases when neither proponents or opponents of an issue are confident of securing the five votes needed for their view to prevail.

Changes in the Supreme Court's composition and the six votes for NYSRPA suggest there are now enough Justices willing to enforce their 2A understanding by actively teaching lower courts.
gc70 is offline  
Old July 5, 2022, 06:30 AM   #43
zukiphile
Senior Member
 
Join Date: December 13, 2005
Posts: 4,277
When Heller was announced, a lot of people thought all the big restrictions in their illiberal states would fall in short order. They read the recognition of an individual right to keep a pistol, and extrapolated the dawn of a libertarian fantasy in which DC would try to comply with law. When that didn't pan out we had a couple of years of people swinging the other way and incorrectly reading a "reasonable restrictions" test into Heller.

Now we have a history and tradition test and the state to carry the burden of establishing compliance.

Quote:
Originally Posted by Metal God
With these new guidelines, I don’t see how we don’t start seeing most Of these laws fall .
Whose history? From what period? NY's history of control laws for the last century was the now stricken Sullivan Act. Does that mean NY can't legislate on this topic? (That's clearly not what the Court found.)

Can a city carry its burden by citation to some western town that posted that all pistols had to be left at the sheriff's office? Can restrictions on demobilized confederates be used as history and tradition?

Is history and tradition sufficient to uphold a regulation the sole purpose of which is to burden the right? Rejecting means/ends analysis and establishing that the burden is on the state are both huge steps, but each is only a step. This can unfold in more than one way.

Which of the nine passes next, and who takes that seat?

Last edited by zukiphile; July 5, 2022 at 08:29 AM.
zukiphile is offline  
Old July 5, 2022, 10:09 AM   #44
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,512
Who’s history ? The United States , since it’s the supreme court it includes the whole country and harder to say “our towns history” . History “&” tradition takes away only using one . My concern would be more and more mass shootings and the anti's using the NFA for there history and tradition example .

As for NY & CA changing there laws right away . I'm kinda glad , as I said earlier they are the gifts that keep on giving . CA has a couple hundred thousand ccw permits and already established what there sensitive places are . All of a sudden everywhere is sensitive. Good luck explaining to the court why so many more places are now prohibited places for law abiding citizens to carry when yesterday they weren’t so sensitive.

Same goes for the training, for years/decades the training requirements were just fine but tomorrow they double the time and cost . What was so bad with the previous training that it now needs to double in duration ?

It does help us that both NY & CA came out and basically said because of the ruling they were going to make it harder to get a permit and increase the sensitive places . All the while not actual having any reasoning to do so consistent with the new ruling .
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .

Last edited by Metal god; July 5, 2022 at 02:23 PM.
Metal god is offline  
Old July 5, 2022, 12:51 PM   #45
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,554
Quote:
“The law may upset reason but reason may never upset the law, or our whole society will shred like an old tatami. The law may be used to confound reason, reason must certainly not be used to overthrow the law.” ― James Clavell, Shōgun
This was said by a fictional Japanese lord in a novel, and seems to be the operative principle of many politicians in the US today.

From where I sit, it seems that the people running NY, CA and some other places are thumbing their collective noses at the Supreme Court and its rulings, WHEN they disagree with the ruling.

They seem to be, in effect, saying "we don't care what you rule, we will make the laws WE want, and they will be the law, until/unless you strike it down, and then, we will write others..."

specific to NY, they passed their new "amended" gun control law within DAYS of the Supreme Court ruling. This tells me that they had it made up and ready in advance of the ruling. Which, by extension says that they expected the ruling to go against their existing law, which implies that they KNEW their law was "bad".

I believe that even had the Supreme Court ruled in their favor, they would have passed the new law, anyway. After all, it was ready, all wrapped up and tied with a bow, just waiting for the Legislature's rubber stamp approval and the Gov's signature. And, their justifications would have been the usual, "to make NY safer:...

I grew up in rural NY state, left for good in 79. Never realized how bad NY laws were until I lived somewhere else that didn't have the restrictions. And that's one of the main problems, and the reason so many NY residents don't seem to care, or fight for their gun rights, its because they have been ruled by anti-gun people their entire lives, and don't know anything else.

And things there today are about an order of magnitude worse than they were when I left.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old July 5, 2022, 01:09 PM   #46
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,512
Quote:
I grew up in rural NY state, left for good in 79. Never realized how bad NY laws were until I lived somewhere else that didn't have the restrictions. And that's one of the main problems, and the reason so many NY residents don't seem to care, or fight for their gun rights, its because they have been ruled by anti-gun people their entire lives, and don't know anything else.
I agree and believe CA is the same . Although I'm old enough to remember when CA wasn't so bad ( before the 90's ) I've lived through this crap so long it's just how it is here now . I hear about other states creating mag limits or AW bans and it makes me snicker a little and it shouldn't . As others shouldn't snicker at CA because they have it so much better .

Quote:
Originally Posted by Martin Niemöller
First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old July 25, 2022, 05:20 PM   #47
SIC TRANSIT GLORIA MUNDI
Senior Member
 
Join Date: January 4, 2001
Location: The People's Republic of Calif
Posts: 268
Quote:
Originally Posted by cdoc42 View Post
44AMP: "In my state a high capacity (more than 10rnds) magazine ban goes into effect today. If you own them today, you get to keep them, but you cannot buy, sell, trade, or give them to anyone, in this state, ever again. This includes your heirs."

Is there anything in the law in your state that addresses how they know you went out of state and happened to buy 6 more magazines for your AR-15 to match the 6 you already have? How do they know how many anyone has in the first place?

If you don't leave your guns to your children in your will, how do they claim....after you die and your children now own the guns because they claim you gave them ownership years before the new law was passed...that they are not telling the truth?
EXACTLY. What they don't know, they can't act upon. My firearms, mags, and ammo will simply disappear into thin air when I pass.
__________________
NRA Benefactor Life Member
CRPA Member
Inland Empire Gun Owners Member
SIC TRANSIT GLORIA MUNDI is offline  
Reply

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 02:58 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2023, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2021 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Page generated in 0.09375 seconds with 8 queries