Decision in Kachalsky LOSS

[JD-IAFF]

It is a slippery slope when the SCOTUS can rewrite the plain language of the Bill of Rights by striking out the the "and bear" portion of the second amendment.

They (well, the vast majority of them) are not literalists. We can't make a literalist argument for "and bear" without running into the literalist consideration of the first half of the amendment, which SCOTUS essentially erased from existence.

Now, while I'm fine with that erasure of the first half in the context that it delivers my preferred outcome, it comes with strings attached - namely that what is good for the goose is good for the gander.

They are never going to sign off on the concept of an unfettered 2A right. Ever. Period. Finito.

That's just the way that it is.

 

[fightinbluhen51]

... And the media/liberals can redefine "regulated"...

*** When can we start taxing stupid? ***

Bold is the only 1000000000% exception in taxation that exists at all levels; you have to keep your "base" happy.

 

[randian]

That said, it hinges on Lisa Madigan being dumb enough to push Moore to cert, which I still don't think she'll do. She's not dumb, by any means, and she knows that if she pushes to SCOTUS, she'll lose.

How does she know that? Kachalsky is easily interpreted as a signal that SCOTUS is ready to overturn rulings like Heller. There is, after all, no practical difference between overturning those cases themselves and maintaining deniability by letting the lower courts do it for them.

 

[randian]

We can't make a literalist argument for "and bear" without running into the literalist consideration of the first half of the amendment, which SCOTUS essentially erased from existence.

The first half of the amendment is irrelevant. It doesn't limit the second half. That's standard English sentence construction. Besides, if it was meant to apply to militias and not individual citizens, it would have said "right of militias" or "right of people in militias", not "right of the people" without qualification. Those who are claiming otherwise are mendacious demagogues.

 

[ShallNotInfringe]

The first half of the amendment is irrelevant. It doesn't limit the second half. That's standard English sentence construction. Besides, if it was meant to apply to militias and not individual citizens, it would have said "right of militias" or "right of people in militias", not "right of the people" without qualification. Those who are claiming otherwise are mendacious demagogues.

Agreed. The sentence is intentionally separated with different language. Was taught that in school. Seems to have gotten lost in the last 40 years though. The people are on the second side of the equation.

*** When can we start taxing stupid? ***

 

[JD-IAFF]

How does she know that? Kachalsky is easily interpreted as a signal that SCOTUS is ready to overturn rulings like Heller. There is, after all, no practical difference between overturning those cases themselves and maintaining deniability by letting the lower courts do it for them.

She knows it because she's a smart lawyer, and SCOTUS is not going to sign off on a complete ban across the board with regard to any sort of carry whatsoever outside the home. She'd be a fool to take it to SCOTUS, especially when the circuit has already given her an out.

SCOTUS isn't going to overturn Heller. Heller just didn't go as far as many of us wanted, and understandably so. Inside the home is an easy thing to get behind. Few people are going to argue that you shouldn't be able to keep a gun in your own home under any circumstances.

Outside the home, it gets a lot more complex. So I think that your statement should probably be rewritten as : "Kachalsky is easily interpreted as a signal that SCOTUS [is not prepared to extend Heller to the place that many of us want to see it be extended to]."

 

[Hopalong]

Based on the Obamacare decision, I'm wondering whether someone has something on Chief Justice Roberts... That seemed like a slam dunk case, and the fact that this case has been denied cert makes me think the CJ may be compromised.

Just remember that Roberts went out of his way to deny the use of the Commerce Clause in the ACA ruling. That was a huge blow to the Obama administration because it limited federal authority.

 

[BeltBuckle]

Honestly, I just don't see that making a bit of difference. Both cases would rein in discretion or bar its use by the State. I agree they want to tread lightly. The case for that is Moore.

right.

My guess is that 4 of the Heller 5 are nervous about bringing Kennedy along, and so want to build carefully and incrementally. I can easily see 2 of those 4 voting to deny cert in Kachalsky waiting for Moore, and then looking longer to the recent legislation in NY, VT, CO and MD, all of which are so grotesquely contemptuous of Heller that hearing them would IMHO increase the odds of holding on to Kennedy.

I don't see this as anything more than careful strategizing and long term chess.

but I could be wrong...

 

[JD-IAFF]

The first half of the amendment is irrelevant. It doesn't limit the second half. That's standard English sentence construction. Besides, if it was meant to apply to militias and not individual citizens, it would have said "right of militias" or "right of people in militias", not "right of the people" without qualification. Those who are claiming otherwise are mendacious demagogues.

You have to consider the first half of the amendment in the context of the Second Militia Act of 1792 (the conscription act). The Second Amendment was ratified in December of 1791. The Second Militia Act was ratified in May of 1792, roughly 5 months later. You can't pretend that an amendment establishing a right to gun ownership which includes verbiage about militias existed in a vacuum from statutes which conscripted people into militias and required them to supply their own arms. The two were unavoidably interdependent.

Which is why I tend to poo-poo the historical arguments and the tri-corner hat people. It's far more productive, and intellectually honest, to assert that the amendment was intended to, among other rationales, facilitate the establishment of militias. That wasn't its only purpose, by any means, but you can't pretend that it wasn't a purpose of the amendment at all. Had there been no purpose at all to the verbiage, they would simply have excluded it altogether. They weren't men known for rhetoric.

It's just a purpose, one among many, that is no longer relevant.

 

[Patrick]

Agreed on all points. I don't think they will seek cert either. As to what Illinois will enact, that is a matter of state politics and there are those who firmly believe that the Chicago crowd do not have the votes for may issue. If so (and I have no idea), then Madigan may feel that a cert petition is necessary. I can't believe that Illinois really wants 200 city ordinances out there, but Illinois is a strange place.

Madigan does not want to seek cert, I agree. But the Governor and several powerful politicians who butter her bread want it fought. If nothing else, they want the time to avoid implementing the edict.

The other side of gun control says that 200+ ordinances are a great thing because it is a denial in practical terms. It will take years to clean it up. The flip side of that argument is that such a patchwork of ugly would only ratchet up the pressure to do something statewide and toss home rule exceptions.

It's a mess all around. I don't think anyone there has the complete upper hand.

 

[occbrian]

right.

My guess is that 4 of the Heller 5 are nervous about bringing Kennedy along, and so want to build carefully and incrementally. I can easily see 2 of those 4 voting to deny cert in Kachalsky waiting for Moore, and then looking longe3r to the recent legislation in NY, VT, CO and MD, all of which are so grotesquely contemptuous of Heller that hearing them would IMHO increase the odds of holding on to Kennedy.

I don't see this as anything more than careful strategizing and long term chess.

but I could be wrong...

I agree with you completely.

 

[esqappellate]

Madigan does not want to seek cert, I agree. But the Governor and several powerful politicians who butter her bread want it fought. If nothing else, they want the time to avoid implementing the edict.

The other side of gun control says that 200+ ordinances are a great thing because it is a denial in practical terms. It will take years to clean it up. The flip side of that argument is that such a patchwork of ugly would only ratchet up the pressure to do something statewide and toss home rule exceptions.

It's a mess all around. I don't think anyone there has the complete upper hand.[/QUOTE]

A mess for sure. But it sorta fun watching Illinois struggle with it. I rather wish we had the downstate power to block that the pro-gun people have in Illinois.

 

[JD-IAFF]

Just remember that Roberts went out of his way to deny the use of the Commerce Clause in the ACA ruling. That was a huge blow to the Obama administration because it limited federal authority.

I'd argue the opposite. A Commerce Clause ruling would have been more constrained. By going the Article 1 route, they essentially gave Congress unlimited power to push health policy. It EXPANDED federal authority.

Imagine, for example, how short a life-span private health insurance would have were Congress to simply expand Medicare to cover every citizen in the country, repeal the employer tax credit for health coverage expenditures and expand (if necessary) the extant Medicare tax to cover the cost. Under the ruling in NFIB v. Sebelius, Congress has all the power in the world to do those.

States would be sidestepped, since they don't AFAIK administer Medicare to begin with. Private health insurance would essentially die.

A Commerce Clause ruling would have made forcing single-payer (which I'm still waiting to see happen) much more difficult. The ruling as issued makes it pretty simple once/if you can get the votes in Congress.

 

[MJD438]

This really irritates me. IANAL, but the mere fact that SCOTUS is ***** footing around this issue, despite CLEAR requests for guidance from multiple Circuits is contemptuous. IMO, they clearly do not believe that the Constitution has any relevance any longer. If our rights are only protected by the Constitution within our homes/property, they are no rights at all.

With letting 2CA stand unchallenged, they have just admitted that "Rational Basis" is the new "Intermediate Scrutiny".

 

[JD-IAFF]

This really irritates me. IANAL, but the mere fact that SCOTUS is ***** footing around this issue, despite CLEAR requests for guidance from multiple Circuits is contemptuous. IMO, they clearly do not believe that the Constitution has any relevance any longer. If our rights are only protected by the Constitution within our homes/property, they are no rights at all.

I could be wrong on this one, but from my perspective it seems a pretty clear signal by SCOTUS of its intent to defer to the legislature(s) as much as possible on this issue. They'll get involved with clearly out of bounds statutes (like the one in Illinois) IF those statutes get before them, but I think we can take this (on some level anyway) as their refusal to preempt the legislature across the board on the more nuanced statutes.

 

[Hopalong]

A Commerce Clause ruling would have made forcing single-payer (which I'm still waiting to see happen) much more difficult. The ruling as issued makes it pretty simple once/if you can get the votes in Congress.

I was under the impression that he set up the whole "this is a tax" ruling as a ready-made challenge to declare such "taxes" unconstitutional. The whole purpose of ruling on one (commerce clause) and not the other (Article 1) was to avoid the impression of judicial activism, at least from my take on it.

But, again, we digress. PM me if you wish to discuss. I hate derailing threads.

 

[Hopalong]

This really irritates me. IANAL, but the mere fact that SCOTUS is ***** footing around this issue, despite CLEAR requests for guidance from multiple Circuits is contemptuous. IMO, they clearly do not believe that the Constitution has any relevance any longer. If our rights are only protected by the Constitution within our homes/property, they are no rights at all.

With letting 2CA stand unchallenged, they have just admitted that "Rational Basis" is the new "Intermediate Scrutiny".

Not necessarily. There's a reason why SCOTUS takes so few cases; they often pass over some cases waiting for just the right one. They're like the Goldilocks of judges.

It's not necessarily an indication that they agree with or aren't interested in the rulings that they deny cert on.

 

[press1280]

Not time to panic yet. Remember, Kachalsky was asking for a concealed carry permit, open carry was not challenged here. Perhaps this was enough to scare a few justices off.
Woolard, OTOH is asking for a permit to carry a handgun-not concealed, not openly. Perhaps that's their angle?
Moore is the simplest for the court to answer. Recall that the DC and Chicago gun bans were each the most Draconian in the country, and those were both taken by SCOTUS. IL's no-carry is also the most restrictive in the country(with DC and a case that's been stalled for 4 years). That's why I hope Madigan files for cert. The IL Supreme Court is also waiting to release an opinion that could end up running contrary to Moore, and would cause a split between a state supreme court and the federal court that oversees that state. Definitely ups the ante.
We also have to acknowlege there really wasn't a true circuit split here, even though SCOTUSBLOG and some others are saying it. The laws of IL and NY are not the same, so there's no real split. A victory in NJ or CA could make this a reality, although the cert denial doesn't install confidence that CA3 or CA9 won't simply cut and paste Kachalsky and be done with it.
I'll be worried if SCOTUS denies Woolard, Moore, and then we lose the CA3 and CA9 cases.

 

[randian]

You have to consider the first half of the amendment in the context of the Second Militia Act of 1792 (the conscription act).

No, I don't. The first half of the 2A indeed states a purpose, but it is not a limiting clause. Bog standard textbook English. Since it is not a limiting clause, whatever purpose it states is irrelevant. The purpose does not limit the right, it only gives one example of why it is important.

 

[Southwest Chuck]

Not time to panic yet. .....
....
I'll be worried if SCOTUS denies Woolard, Moore, and then we lose the CA3 and CA9 cases.

If that happens, the time for worrying will be over because our ship will already have sailed.