Commonwealth v. Caetano

[pcfixer]

That's what I'm saying. In Kolbe the weapons/magazines where determined to be protected arms AND banning them required strict scrutiny. The 4th Circuit voted to rehear the case en banc so assume that a majority wanted to overturn both the protected arms part AND the strict scrutiny part. If Caetano takes off the table the protect arms argument, that still leaves the finding that banning is ok if strict scrutiny is replaced with something like intermediate scrutiny, a la friedman vs highland park which SCOTUS passed on.

The panel ultimately held that this Court’s prior decisions in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), and Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), compelled the application of strict scrutiny in the instant case, because the prohibitions significantly burden the exercise of the right of law-abiding citizens to arm themselves in their homes. Slip Op. at 40, 45.3

I understand there is a split on what SS or IS is being used between the circuit courts. With Caetano that arguement is off the tale, JMHO as I see it. Dangerous and unusual also is on the table with regards to Kolbe.

 

[danb]

That's what I'm saying. In Kolbe the weapons/magazines where determined to be protected arms AND banning them required strict scrutiny. The 4th Circuit voted to rehear the case en banc so assume that a majority wanted to overturn both the protected arms part AND the strict scrutiny part. If Caetano takes off the table the protect arms argument, that still leaves the finding that banning is ok if strict scrutiny is replaced with something like intermediate scrutiny, a la friedman vs highland park which SCOTUS passed on.

Or, some people felt a ban on protected arms could not be supported under any level of heightened scrutiny (and there was no need to even get into strict vs intermediate scrutiny).

There was a part of me that thought there was a chance this case went en banc because the opinion did not go far enough. Now with Caetano, I think there a chance Frosh ends up worse than if there were no appeal.

 

[DC-W]

Professor Volokh comments:

https://www.washingtonpost.com/news...ent-stun-gun-decision-from-the-supreme-court/

Regards
Jack

Very good read. Thanks!

 

[Boxcab]

Professor Volokh comments:

https://www.washingtonpost.com/news...ent-stun-gun-decision-from-the-supreme-court/

Regards
Jack

Post won't let me see it without subscribing.



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[BigSteve57]

It's too bad that now that SC says "Look, you just can't make certain arguments per Heller" that those same arguments continue to get made.

Why can't those cases won on the verboten arguments expressed in Heller and reiterated here simply fall?
Rhetorical question...

 

[Stevil Kenevil]

Professor Volokh comments:

https://www.washingtonpost.com/news...ent-stun-gun-decision-from-the-supreme-court/

Regards
Jack

“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,”

EVEN THOSE NOT IN EXISTENCE AT THE TIME.

 

[ddestruel]

Three things in that quote.

1. Second Amendment protections are settled. Thus, no other iteration or theory about them is plausible.

2. The 2A protects the right to keep AND BEAR arms.

3. The Right is a limitation AGAINST the government and is not something granted to the people.

This entirely blows the State's argument in Peruta and [the handgun roster case- I forget the name at the moment] out of the water.

A. It does not allow convoluted theories about when, where, or what arms the 2A applies to.
B. It does not limit the Right to 'in the home' AND vindicates that the Right includes the Right to Bear Arms in public.
C. It prohibits the State's attempts to limit what arms can be carried or possessed by eliminating the 'dangerous or unusual' test as applied to firearms. (MAJOR WIN for the roster case because it's based on 'the firearms not on this list are too dangerous'.)
D. Prohibits bans based on class or category.

I still expect to not see an opinion in Peruta until late this summer. At the earliest. But, I now believe that the Court will be forced to obey the law and concur with the panel opinion.

a poster on another forum rplaw i believe posted this. that seems like alot to deduce on this ruling but guess if you word it right and walk the argument it does seem to be connected or giving a fair amount of guidance in such a short response.

i dont see the liberal justices coming around fully and had it been a firearm im not sure we'd be discussing this in the same context.

 

[Kharn]

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Clear your cookies then open the link in incognito mode.

 

[shacklefordbanks]

I am surprised that there hasn't been more followup coverage. A slew of wire reports and a splattering of other short articles and then poof, off into the news ozone. And that was before Brussels. Also kudos to the unsung public defenders like Benjamin Keehn that started the ball rolling. It's hard to see how Caetano's conviction is not overturned based on this, but I'm sure that the late night oil is burning in the public safety/intermediate scrutiny window somewhere.

 

[shacklefordbanks]

Clear your cookies then open the link in incognito mode.

You can also use Chrome browser and open an incognito window.

 

[TopShelf]

WSJ subscription needed for this one - http://www.wsj.com/articles/the-supreme-courts-eight-gun-salute-1458602413

No subscription required for this one - http://www.scotusblog.com/2016/03/the-second-amendment-expands-but-maybe-not-by-much/

Noteworthy: No Dissent

 

[Mike]

I am surprised that there hasn't been more followup coverage. A slew of wire reports and a splattering of other short articles and then poof, off into the news ozone. And that was before Brussels. Also kudos to the unsung public defenders like Benjamin Keehn that started the ball rolling. It's hard to see how Caetano's conviction is not overturned based on this, but I'm sure that the late night oil is burning in the public safety/intermediate scrutiny window somewhere.

I suspect this flew under the radar because it was "only about a stun gun" but we know otherwise, how important and far-reaching this truly is.

 

[press1280]

Would I be correct in assuming any states and localities with bans on knives, batons, exc are now in doubt?

 

[wjackcooper]

Note that professor Volokh points out that the opinion gives the lower court the chance to see . . . “whether the ban may still be justified by some sufficiently important government interest.” Could be the lower court might consider concocting an “important government interest” to be a cakewalk.

Regards
Jack

 

[777GSOTB]

Note that professor Volokh points out that the opinion gives the lower court the chance to see . . . “whether the ban may still be justified by some sufficiently important government interest.” Could be the lower court might consider concocting an “important government interest” to be a cakewalk.

Regards
Jack

A ridiculous proposition...It's a non-lethal arm protected by the 2A.

 

[Knuckle Dragger]

Note that professor Volokh points out that the opinion gives the lower court the chance to see . . . “whether the ban may still be justified by some sufficiently important government interest.” Could be the lower court might consider concocting an “important government interest” to be a cakewalk.

Regards
Jack

I'm certain that the Mass AG and the SJC will do their best to 'concoct' an important government interest.

 

[Not_an_outlaw]

Would I be correct in assuming any states and localities with bans on knives, batons, exc are now in doubt?

Brass knuckles, switchblades?

 

[wjackcooper]

A ridiculous proposition...It's a non-lethal arm protected by the 2A.

Are you suggesting the posture of the case is not as pointed out by professor Volokh and/or that the lower court’s putting together another opinion holding the statute constitutional is conclusively precluded?

Please explain.

Thanks
Jack

 

[pcfixer]

You can bet that Caetano will be included in briefs along with orals by both lawyers.
Just depends on how each of these judges will hear the plain text of the law.

 

[BigSteve57]

You can bet that Caetano will be included in briefs along with orals by both lawyers.
Just depends on how each of these judges will hear the plain text of the law.

Suuuuuuuuuuuuure. Just like they read "shall not be infringed".