5/11 scotus briefs

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  • rbird7282

    Ultimate Member
    MDS Supporter
    Dec 6, 2012
    18,538
    Columbia
    I get the impression that you read my message in a hurry or something, because some of what you say suggests that you didn't understand what I wrote. Re-reading my original message may be helpful.



    Nor did I. My argument is that today's laws are often not indicative of how the population at large today feels about the liberty that the laws in question restrict, and that the laws of the past are no different in that respect. As such, you can't necessarily use historical laws to indicate what the population as a whole thought about the right, most especially in those cases where the laws in question were highly limited in their jurisdiction (meaning, if you just had a single law in a single city in the country, as an example, that law's existence is no indicator at all of what the nation's population thought).



    Correct. It's a preexisting right that has a scope that was understood by those who authored and ratified the Constitution (the founding generation) and/or those who came before the founding generation.




    By looking at the widespread laws that existed at the time, along with the writings of numerous people who lived at the time.




    It can, but only if those restrictions were widespread. Restrictions that were in place only in select areas cannot count for that, absent other historical indications such as writings of the time.




    It's not a direct restriction on bearing arms. But a restriction on how one can use a weapon may be a restriction upon one of the foundational reasons for the right to arms, and that would, absent compelling evidence that the founders understood the scope of the right to not encompass that which was restricted, make it an infringement on the right.

    Put another way, the right to keep and bear arms is itself a minimum that cannot be infringed, but because it exists for a set of valid purposes, infringement upon those valid purposes is also not permissible even if the restriction in question is not directly upon keep or bear. This is so because if one were to, as an example, completely forbid all of the valid purposes for which the right exists, then the right would become a paperweight.

    The total scope is thus the scope of keep and bear itself, plus the scope of all valid purposes for which the right to keep and bear was believed to exist. The actual scope of each is that which was understood by those who adopted the right. Additional purposes and scopes can be added over time, but that which was understood at the time of adoption of the right is the minimum scope.




    Anything that impinges on the right is infringement. To impinge on the right, the law in question must operate within the scope of the right. The scope of the right is that which was understood by those who adopted it. Founding-era restrictions may be indicators of what those who adopted it thought the scope to exclude, depending on how widespread those restrictions were. Other founding-era sources can also shed light on the question. But in the absence of substantial evidence showing that the founding generation as a whole believed that the scope of the right doesn't encompass something that is otherwise within the definition of the right, one must assume that the scope of the right does encompass it. And this is so due to the necessary presumption of liberty, since liberty was one of the key drivers of the Revolutionary War and subsequent founding of the country.

    So it doesn't undermine my argument in the slightest. Widespread founding-era laws are likely (but not guaranteed) to inform of the scope of the right. But laws which were not widespread cannot by themselves be used for that purpose. The equivalent of using a law that was present only in select areas would be for someone today to find a law in, say, a single town in the entire country, and then claim that it is indicative of what the country thinks. It would be a blatantly incorrect inference. At most, such a law would indicate what the people in the town think, nothing more.




    The presumption has to be that restrictions didn't exist unless there is proper evidence of them. Otherwise, you could make such a claim for any restriction you like, and then claim that failure to find corresponding evidence does nothing to contradict the claim. All of the cases cited by Heller save for Bliss were decided by people not of the founding generation, and therefore cannot be indicative of what the founding generation believed.

    I'm not claiming that the founding generation didn't believe that concealed carry was excluded from the scope of the right. I'm saying that the only founding-era jurisprudential evidence we have (at least that I know of) is that concealed carry was considered to be included in the right, and if the claim in Heller about the scope of the right is to be taken at face value, then it follows that founding-era sources will need to be consulted in order to arrive at a proper determination of that. If those sources show that the population at large believed concealed carry to not be included in the scope of the right, then so be it.





    Sent from my iPhone using Tapatalk
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The CCW restrictions were never really explored by any American courts, it was simply accepted that the practice was evil and sneaky and because open carry was legal. One thing of note was that the "pocket pistols" were small and cheap and were frowned upon and even banned from public carry because the lower classes (and minorities) would be more apt to own these than the horseman's/army/navy pistols which were larger and harder to conceal. Restrictions targeted towards poor individuals is a non-starter today but back then was more acceptable.

    You are correct that they were really never explored. Yet no one has tried to explain why. It does not seem to hurt explaining why.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I'd actually argue it goes the other way. Think about it, Bliss was based only on the KY RKBA so it would have no bearing on what other states did (and obviously some went the other way). But look at the state RKBA amendments evolution after Bliss. None mentioned concealed weapons before this time but they sprang up afterward. This tells me that at the very least they were concerned enough that their courts could rule the same way Bliss did, so they added the concealed weapon caveat. And when you make a statement that "The people have the right to keep and bear arms EXCEPT the legislature shall have the right to regulate concealed weapons," that affirmatively indicates concealed weapons WERE part of the right but are now being carved out.

    While that is possible, I do suspect that the court provided an opinion that allowed concealed carry and that concerned enough people that they changed the constitution. I do not know enough about the situation to confirm or deny the possibility however.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    http://www.davekopel.com/2A/Mags/Our-2nd-Amendment-The-Original-Perspective.htm
    I did find this:

    Tucker's American Blackstone reprinted Blackstone's commentary on what Blackstone called the five "auxiliary rights of the subject." These were rights (such as the right to seek legal redress in court, and the right to petition) whose main purpose was to safeguard primary rights (personal liberty, personal security, and property).

    Blackstone had written:"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2, and its indeed, a public allowance under due restrictions, of the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."


    I have not found that Blackstone or Tucker's quoted any 2A is not unlimited.
    That's seem to be only in Heller.

    I believe the terms "allowed by law" and "under due restrictions" is what suggests that the existing right is not unlimited.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    I believe the terms "allowed by law" and "under due restrictions" is what suggests that the existing right is not unlimited.

    With what you saying then. Under current law AR's and 20/30 round magazine are still be sold--other than some brands/manufacturers are banned in MD by MGA, are still legally owned by many gun owners in many states.

    In the face of 4th Circuit opinion in Kolbe making these same semi auto rifle and what's called 'large capacity magazines" not protected by 2A.
    "like” “M-16 rifles” — “weapons that are most
    useful in military service” — which the Heller Court singled out
    as being beyond the Second Amendment’s reach. See 554 U.S. at
    627
    (rejecting the notion that the Second Amendment safeguards
    “M-16 rifles and the like”)
    What does 554 US at 627 mean and say. I don't think that corresponds exactly with Scalia wrote or meant in Heller.
    in Kolbe the circuit did try and rewrite the law in Heller by qotes directly out of context. Scalia went on to explain. 2A shall not be infringed.
    But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.

    There are no limits with semi- automatic rifle which also include AR-15's or all brands and models. These not fully automatic as in the M-16 surely is that functionality.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The first thing is to examine the text

    It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

    I believe that SCOTUS was trying to acknowledge that not all military arms were protected by the 2A. They did not want to declare the NFA unconstitutional so they wrote that paragraph that can be difficult to understand. The way I read it is that it protects small arms that are not NFA items.

    The 4th circuit decided to only read part of the first sentence "weapons that are most useful in military service—M-16 rifles and the like—may be banned". They ignored that the first sentence is really a conditional sentence and has two parts. They ignored the "But as we have said" part and ignored what they said four paragraphs earlier where the SCOTUS put the term "small-arms" into the quote to ensure they understood the type of weapons used by the militia. They went on to misread the rest of the paragraph when they stated "the fit is not measured today, when a militia may 'require sophisticated arms that are highly unusual in society at large,' including arms that 'could be useful against modern-day bombers and tanks.'" The completely ignored the part about small arms. They then went on to make up their own interpretation of what "M-16 rifles and the like" meant.

    Just my opinion.
     

    JPG

    Ultimate Member
    Aug 5, 2012
    6,996
    Calvert County
    All the anti-2A side has to argue is the laws were passed to "protect public Health and Safety" and the Judges will continue to side on the anti-2A side forever regardless.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    While that is possible, I do suspect that the court provided an opinion that allowed concealed carry and that concerned enough people that they changed the constitution. I do not know enough about the situation to confirm or deny the possibility however.

    That would explain KY but not the states that added it to their constitutions afterward
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    All the anti-2A side has to argue is the laws were passed to "protect public Health and Safety" and the Judges will continue to side on the anti-2A side forever regardless.

    Yes and unfortunately they really don’t need to back it with anything other than speculation.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    The first thing is to examine the text



    I believe that SCOTUS was trying to acknowledge that not all military arms were protected by the 2A. They did not want to declare the NFA unconstitutional so they wrote that paragraph that can be difficult to understand. The way I read it is that it protects small arms that are not NFA items.

    The 4th circuit decided to only read part of the first sentence "weapons that are most useful in military service—M-16 rifles and the like—may be banned". They ignored that the first sentence is really a conditional sentence and has two parts. They ignored the "But as we have said" part and ignored what they said four paragraphs earlier where the SCOTUS put the term "small-arms" into the quote to ensure they understood the type of weapons used by the militia. They went on to misread the rest of the paragraph when they stated "the fit is not measured today, when a militia may 'require sophisticated arms that are highly unusual in society at large,' including arms that 'could be useful against modern-day bombers and tanks.'" The completely ignored the part about small arms. They then went on to make up their own interpretation of what "M-16 rifles and the like" meant.

    Just my opinion.

    Yes, you are able to have that opinion. I think you can do better with a educated guess on exactly what the text says. JMHO too. With all due respect.

    Quoted from "Rogers v Grewal dessent.
    Even accepting this test on its terms, its application has yielded analyses that are entirely inconsistent with Heller. There, we cautioned that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” stating that our constitutional rights must be protected “whether or not future legislatures or (yes) even future judges think that scope too broad.” 554 U. S., at 634–635. On that basis, we explicitly rejected the invitation to evaluate Second Amendment challenges under an “interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.” Id., at 689 (Breyer, J., dissenting). But the application of the test adopted by the courts of appeals has devolved into just that.1 In fact, at least one scholar has contended that this interest-balancing approach has ultimately carried the day, as the lower courts systematically ignore the Court’s actual holding in Heller. See Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703 (2012). With what other constitutional right would this Court allow such blatant defiance of its precedent?

    JPG
    All the anti-2A side has to argue is the laws were passed to "protect public Health and Safety" and the Judges will continue to side on the anti-2A side forever regardless.

    press1280 Yes and unfortunately they really don’t need to back it with anything other than speculation.
    Yes, I agree 100%
    At least we know 2 justices in SC do not hold this view. It occurs to me that many originalists and conservative people who own firearms do not see any value in the government public safety as reasoning to limited 2A rights. I can and many due protect their own safety, I don't need the police or government to tell me they're making 'safety' for us.
     
    Last edited:

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Yes, you are able to have that opinion. I think you can do better with a educated guess on exactly what the text says. JMHO too. With all due respect.

    Quoted from "Rogers v Grewal dessent.




    Yes, I agree 100%
    At least we know 2 justices in SC do not hold this view. It occurs to me that many originalists and conservative people who own firearms do not see any value in the government public safety as reasoning to limited 2A rights. I can and many due protect their own safety, I don't need the police or government to tell me they're making 'safety' for us.

    All the anti-2A side has to argue is the laws were passed to "protect public Health and Safety" and the Judges will continue to side on the anti-2A side forever regardless.

    Yes and unfortunately they really don’t need to back it with anything other than speculation.

    As I continue to say, it is not SCOTUS's job to correct errors in individual cases. It is the attorney's job to point out the reasoning why and explain why it is a systematic issue. If you read the Rogers petition, they don't really answer why the lower court got it wrong and why it is a systematic issue. The spent the majority of the petition demonstrating an issue that was not disputed and complaining that the lower court got the answer wrong.

    In Kolbe, they did a poor job explaining the reasoning why. They never really explain why "M-16 rifles and the like" refers to automatic rifles rather than cosmetically similar rifles like the 4CA determined. They rely on the dissent, which was poorly reasoned in my opinion. This is because it does not really disprove the majority opinion, it simply disagrees with it.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    As I continue to say, it is not SCOTUS's job to correct errors in individual cases. It is the attorney's job to point out the reasoning why and explain why it is a systematic issue. If you read the Rogers petition, they don't really answer why the lower court got it wrong and why it is a systematic issue. The spent the majority of the petition demonstrating an issue that was not disputed and complaining that the lower court got the answer wrong.

    In Kolbe, they did a poor job explaining the reasoning why. They never really explain why "M-16 rifles and the like" refers to automatic rifles rather than cosmetically similar rifles like the 4CA determined. They rely on the dissent, which was poorly reasoned in my opinion. This is because it does not really disprove the majority opinion, it simply disagrees with it.

    I agree partially that SCOTUS doesn’t normally correct individual errors in individual cases. But in the case of Rogers we have a split with Wrenn which obviously makes for two competing methods between the circuits. They pointed to follow Wrenn several times in their brief as well as numerous amici.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I agree partially that SCOTUS doesn’t normally correct individual errors in individual cases. But in the case of Rogers we have a split with Wrenn which obviously makes for two competing methods between the circuits. They pointed to follow Wrenn several times in their brief as well as numerous amici.

    They do not take every split. The problem with Rogers is that they never really answered why the original Drake decision was wrong. Their only real argument was we like Wren better, and we know that is not enough for the district or appellate court to change their mind.

    Wren did not really answer the question either. It certainly provided a different way to resolve the question, but which way is correct? Is the intermediate scrutiny answer that most courts use correct, or is the categorical approach the correct answer?

    I believe that SCOTUS will take a case where they can provide an answer to why the lower court is wrong. I don't believe the previously rejected cases provided that answer.
     

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