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Old January 9th, 2019, 01:43 AM #161
jcutonilli jcutonilli is offline
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Originally Posted by Not_an_outlaw View Post
By your proffered assessment, everything can be substantially related. I would like to see some other points of view. Can you think of a single right that someone cannot come up with an argument that meets intermediate scrutiny? That is the problem with the test. It makes sense with signs at liquor stores and advertisements on commercial vehicles, but not so much with fundamental rights.
It's not my proffered assessment, it's the courts. Everything is not substantially related. Many first amendment related laws get struck down under intermediate scrutiny. Laws rarely pass strict scrutiny and rarely fail rational basis. Intermediate scrutiny is somewhere in between. The problem is that it is ill defined and can live closer to one or the other levels depending on the judge.

I certainly believe that there is a much more substantial link to public safety compared to any of the other amendments. I think it makes it easy for judges to misapply intermediate scrutiny. The real question is how do you argue a case so that judges can believe they are applying intermediate scrutiny.

I don't believe the cases have been argued correctly. My opinion is based on the court decisions and the denied cert petitions. While many people recognize that there is problem, I have not really seen anyone else try and understand and address the problem. I have yet to see any arguments changed to address the problem. It seems to me that people would rather stick their head in the sand and complain about the courts rather than understand the problem and craft better arguments.

You seem to have ignored the fatal flaw in the courts argument. Guns are inanimate objects and do not actually kill people. Its the person that really does the killing. Until you stop focusing on the negative benefits and start focusing on the societal benefits, we are going to continue to loose. A gun cannot be both bad and good at the same time. The government exempts themselves because of the beneficial effects, yet says that it cannot remain in society. Why doesn't anyone point out this hypocrisy?

Maybe there are other ways or better ways. I would like to hear them.
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Old January 9th, 2019, 09:14 AM #162
wjackcooper wjackcooper is offline
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One more

Doubt that the Supreme Court will continue to defer (while legislators gut the Second Amendment) provided that Trump gets one more Justice appointed.

Regards
Jack
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Old January 9th, 2019, 09:20 AM #163
GlocksAndPatriots GlocksAndPatriots is offline
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Quote:
Originally Posted by Not_an_outlaw View Post
By your proffered assessment, everything can be substantially related. I would like to see some other points of view. Can you think of a single right that someone cannot come up with an argument that meets intermediate scrutiny? That is the problem with the test. It makes sense with signs at liquor stores and advertisements on commercial vehicles, but not so much with fundamental rights.
Not to mention that in other cases, the courts DO analyze the evidence to determine whether the law IS a reasonable fit to the interest. They don't just say "The legislature said so, therefore it is."
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Old January 9th, 2019, 12:51 PM #164
Not_an_outlaw Not_an_outlaw is offline
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Originally Posted by jcutonilli View Post
It's not my proffered assessment, it's the courts. Everything is not substantially related. Many first amendment related laws get struck down under intermediate scrutiny. Laws rarely pass strict scrutiny and rarely fail rational basis. Intermediate scrutiny is somewhere in between. The problem is that it is ill defined and can live closer to one or the other levels depending on the judge.

I certainly believe that there is a much more substantial link to public safety compared to any of the other amendments. I think it makes it easy for judges to misapply intermediate scrutiny. The real question is how do you argue a case so that judges can believe they are applying intermediate scrutiny.

I don't believe the cases have been argued correctly. My opinion is based on the court decisions and the denied cert petitions. While many people recognize that there is problem, I have not really seen anyone else try and understand and address the problem. I have yet to see any arguments changed to address the problem. It seems to me that people would rather stick their head in the sand and complain about the courts rather than understand the problem and craft better arguments.

You seem to have ignored the fatal flaw in the courts argument. Guns are inanimate objects and do not actually kill people. Its the person that really does the killing. Until you stop focusing on the negative benefits and start focusing on the societal benefits, we are going to continue to loose. A gun cannot be both bad and good at the same time. The government exempts themselves because of the beneficial effects, yet says that it cannot remain in society. Why doesn't anyone point out this hypocrisy?

Maybe there are other ways or better ways. I would like to hear them.
I'd like to see more on your exemption idea. I think equal protection between police and citizenry can be made using your argument relating to the positive aspects of firearms. Is anyone making such a claim currently. There should be plenty of opportunities for test cases. Since the argument is different there probably would be that much case law.
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Old January 9th, 2019, 04:37 PM #165
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I'd like to see more on your exemption idea. I think equal protection between police and citizenry can be made using your argument relating to the positive aspects of firearms. Is anyone making such a claim currently. There should be plenty of opportunities for test cases. Since the argument is different there probably would be that much case law.
I would not really say that it is an equal protection argument, although it may be useful for that type of argument. Many 2A cases have tried to make an equal protection argument via the 14th amendment. They fail because the state makes a public safety argument as to why there is an exception. They do not make a corresponding public safety argument about why the public should be able to do the same thing. They make a self defense argument, but fail to realize the government does not really protect individuals. I believe the fact that the government does not protect individuals would be another useful aspect because it is a legal argument as opposed to an empirical one.

The exemption is important to the scrutiny aspect of the 2A. The government frames the argument as guns are dangerous. The plaintiffs argue that restrictions won't really work. The problem is that you cannot fully deny the dangers posed by guns because these dangers are the same reason why they are useful. You need to demonstrate why they are useful to society. The easiest way to do this is use the exemptions against the government. The government cannot take the position that they are both useful and so dangerous that they cannot be part of society. It is hard to demonstrate that the people provide public safety if all you focus on is individual self defense.
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Old January 14th, 2019, 06:53 AM #166
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Rehearing en banc was denied on January 9th.
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Old January 21st, 2019, 09:13 PM #167
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Rehearing en banc was denied on January 9th.
F them...

Clear proof in the disent!

Quote:
the government’s own police detective testified that he carries large magazines because they give him a tactical “advantage

Quote:
admitted that “lawabiding citizens in a gunfight” would also find them “advantageous.” App. 119. So the ban impairs both criminal uses and self-defense.
The
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And we never demand evidence of how severely a law burdens or how many people it hinders before picking a tier of scrutiny. That demand is backwards and explicitly forbidden by Heller. We should read our precedent in keeping with the Supreme Court’s instructions
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Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of tyrannical government.

“By the way I call it "moral obedience" rather than "civil disobedience" because it is God's law". Those who try to promote un-natural laws on us are committing moral disobedience. It is our duty to resist immoral laws and actions.” By Richard Fry.
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