Gould v. O'Leary 1st Circuit(Mass. CCW challenge)

Allen65 · Nov 4, 2018

jcutonilli said:
Why is it rational basis and not intermediate scrutiny? I keep hearing people say this but they provide no real explanation as to why this is the case. If you want the courts to accept this you need to provide a reasonable explanation. Nobody has and SCOTUS has not stepped in to change it.

The court merely accepts the defendants' "public safety" argument with complete deference to them, without any examination of whether there is a factual basis for them, or just how much public safety is improved in denying the permits.

Isn't that pretty much the definition of rational basis, where the Court defers to the legislature or executive to determine potential efficacy of a policy? Intermediate scrutiny is indistinguishable from rational basis if one party's biased efficacy assertions are accepted verbatim, and interest balancing is only conducted with that biased data without question.

GlocksAndPatriots · Nov 4, 2018

Allen65 said:
The court merely accepts the defendants' "public safety" argument with complete deference to them, without any examination of whether there is a factual basis for them, or just how much public safety is improved in denying the permits.

Isn't that pretty much the definition of rational basis, where the Court defers to the legislature or executive to determine potential efficacy of a policy? Intermediate scrutiny is indistinguishable from rational basis if one party's biased efficacy assertions are accepted verbatim, and interest balancing is only conducted with that biased data without question.

Exactly right. True intermediate scrutiny requires that the court analyze the law for its “fit” in furthering the interest the government claims is important. If the court takes the legislature’s word for it that the law substantially furthers that interest without independently analyzing the evidence, it’s rational basis, not intermediate.

press1280 · Nov 4, 2018

I agree with the 2 previous posts. It is supposed to be the government's burden to meet, yet our side seems to ALWAYS have the burden. And the court admits there are dueling statistics on the matter. If that's the case then the court should side with preserving the right.
Now hopefully when SCOTUS hears a case they'll rule for text, history, and tradition-something that was mentioned by Chief Justice Roberts during Heller oral arguments and reiterated by then Judge Kavanaugh in Heller II.

press1280 · Nov 4, 2018

GTOGUNNER said:
They, the court, mentions stun guns in the definition of firearms. I thought that was cleared up? Or is it still in the law and just won't be prosecuted?

I'm assuming the legislature just threw stun guns in with firearms after the state supreme court rules the stun gun ban unconstitutional.

wolfwood · Nov 4, 2018

I'll be curious to see what esq has to say about this. I am glad the court distingushed Young throughout the opinion

jcutonilli · Nov 4, 2018

UO

Allen65 said:
The court merely accepts the defendants' "public safety" argument with complete deference to them, without any examination of whether there is a factual basis for them, or just how much public safety is improved in denying the permits.

Isn't that pretty much the definition of rational basis, where the Court defers to the legislature or executive to determine potential efficacy of a policy? Intermediate scrutiny is indistinguishable from rational basis if one party's biased efficacy assertions are accepted verbatim, and interest balancing is only conducted with that biased data without question.

GlocksAndPatriots said:
Exactly right. True intermediate scrutiny requires that the court analyze the law for its “fit” in furthering the interest the government claims is important. If the court takes the legislature’s word for it that the law substantially furthers that interest without independently analyzing the evidence, it’s rational basis, not intermediate.

The court claims that there is not complete deference.

We caution, however, that deference should not be confused with blind allegiance. There must be a fit between the asserted governmental interests and the means chosen by the legislature to advance those interests.

It finds that there is some evidence to support the governments contention.

To buttress this point, the defendants have cited several studies indicating that states with more restrictive licensing schemes for the public carriage of firearms experience significantly lower rates of gun-related homicides and other violent crimes. ... They also cite statistics indicating that gun owners are more likely to be the victims of gun violence when they carry
their weapons in public. ... Finally, the defendants have expressed a credible concern that civilians (even civilians who, like the plaintiffs, are law-abiding citizens) might miss when attempting to use a firearm for self-defense on crowded public streets and, thus, create a deadly risk to innocent bystanders.

"Bad guys" certainly do bad things with guns that negatively affect public safety.

https://en.wikipedia.org/wiki/Rational_basis_review
Rational basis review determines whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. Heller acknowledges that the DC law would meet rational basis.

https://en.wikipedia.org/wiki/Intermediate_scrutiny
Intermediate scrutiny requires that the law or policy being challenged further an important government interest by means that are substantially related to that interest.

If all you are going to do is throw a bunch of statistics at the problem how is the court supposed to know what the correct answer is?

Taken in the ensemble, the disparate views expressed in these studies, articles, and other submissions aptly illustrate that we are dealing with matters of judgment, not with matters of metaphysical certainty. To a large extent, choosing among these disparate views is like choosing from a menu at a popular restaurant: something can be found to suit every palate and the diner's choice is more likely to reflect her particular taste than
the absolute quality of the dish.

Courts tend to stay away from matters of legislative judgment.

jcutonilli · Nov 4, 2018

press1280 said:
I agree with the 2 previous posts. It is supposed to be the government's burden to meet, yet our side seems to ALWAYS have the burden. And the court admits there are dueling statistics on the matter. If that's the case then the court should side with preserving the right.
Now hopefully when SCOTUS hears a case they'll rule for text, history, and tradition-something that was mentioned by Chief Justice Roberts during Heller oral arguments and reiterated by then Judge Kavanaugh in Heller II.

The government does provide statistics. If they provided nothing then they would lose. I believe under rational basis the court can step in and provide the basis, but under intermediate scrutiny the government must provide it. With respect to history and tradition of the public carry of firearms the court found that

After a diligent search for the answer to this question, we find — as have several of our sister circuits — that there is no national consensus, rooted in history, concerning the right to public carriage of firearms.

The answer is not as clear as some have suggested.

GlocksAndPatriots · Nov 5, 2018

jcutonilli said:
The government does provide statistics. If they provided nothing then they would lose. I believe under rational basis the court can step in and provide the basis, but under intermediate scrutiny the government must provide it. With respect to history and tradition of the public carry of firearms the court found that

The answer is not as clear as some have suggested.

It's very clear to anyone with a modicum of intellectual honesty.

Occam · Nov 5, 2018

After a diligent search for the answer to this question, we find — as have several of our sister circuits — that there is no national consensus, rooted in history, concerning the right to public carriage of firearms.

How diligent a search could it have been if it didn't include taking a few minutes to read the constitution? Right there in black and white: "keep and bear" arms. If someone can't find that during their search, it's because they really, really don't want to.

jcutonilli · Nov 5, 2018

GlocksAndPatriots said:
It's very clear to anyone with a modicum of intellectual honesty.

How is it very clear if there are historical prohibitions of concealed carry? How is it clear if there were gun control laws found in the old west? How is it clear if English carry was generally prohibited (basis of 2A right)?

While I disagree with the judges in this case and the other similarly decided cases, I do not think the answer is as clear as you believe it is to anyone with a modicum of intellectual honesty. The judges certainly don't believe the answer is very clear. Given that they are the ones deciding the cases their opinion is what counts.

jcutonilli · Nov 5, 2018

Occam said:
How diligent a search could it have been if it didn't include taking a few minutes to read the constitution? Right there in black and white: "keep and bear" arms. If someone can't find that during their search, it's because they really, really don't want to.

I believe Heller answered that question. The 2A does not define the right, it is a preexisting one. This means that the constitution does not give the answer. The right shall not be infringed, but what exactly is the right? Where do you go to find the answer? The constitution is not the correct place.

press1280 · Nov 5, 2018

jcutonilli said:
The government does provide statistics. If they provided nothing then they would lose. I believe under rational basis the court can step in and provide the basis, but under intermediate scrutiny the government must provide it. With respect to history and tradition of the public carry of firearms the court found that

The answer is not as clear as some have suggested.

Well then, can you find any cases where the courts explicitly rule that the right doesn't extend past the front door? A law's existence cannot be the source of its constitutionality. The few old west carry bans were overturned by courts (in re Brickey) or by constitutional amendment a mere few years after the carry ban (Wyoming: The right of citizens to bear arms in defense of themselves and of the state shall not be denied. Art. I, § 24 (enacted 1889). These 2 are always favorites the antis like to put in their briefs but seems to me like the people, and courts, were having none of it.
Keep in mind this MA LTC is not a pure CCW; it is a general carry permit (although it wouldn't be wise to OC in MA), thus should not fall under precedent of CCW bans.

press1280 · Nov 5, 2018

jcutonilli said:
I believe Heller answered that question. The 2A does not define the right, it is a preexisting one. This means that the constitution does not give the answer. The right shall not be infringed, but what exactly is the right? Where do you go to find the answer? The constitution is not the correct place.

You have to look to precedent in the US which is mostly the antebellum South, but you also have 2 SCOTUS cases which both hint at a right to carry: Dred Scott v. Sanford & Robertson v. Baldwin.

danb · Nov 5, 2018

press1280 said:
You have to look to precedent in the US which is mostly the antebellum South, but you also have 2 SCOTUS cases which both hint at a right to carry: Dred Scott v. Sanford & Robertson v. Baldwin.

The court did not look carefully at the 1836 MA good cause statute. Halbrook has noted and written on this: the law did not prevent people from carrying. ?More or less It only provided for a bond IF someone made a complaint. So someone had to complain to a magistrate, convince a judge, and the remedy was that the person had to put up "sureties" or a bond in order to carry.

Not terribly surpring the court glossed over the details.

jcutonilli · Nov 5, 2018

press1280 said:
Well then, can you find any cases where the courts explicitly rule that the right doesn't extend past the front door? A law's existence cannot be the source of its constitutionality. The few old west carry bans were overturned by courts (in re Brickey) or by constitutional amendment a mere few years after the carry ban (Wyoming: The right of citizens to bear arms in defense of themselves and of the state shall not be denied. Art. I, § 24 (enacted 1889). These 2 are always favorites the antis like to put in their briefs but seems to me like the people, and courts, were having none of it.
Keep in mind this MA LTC is not a pure CCW; it is a general carry permit (although it wouldn't be wise to OC in MA), thus should not fall under precedent of CCW bans.

press1280 said:
You have to look to precedent in the US which is mostly the antebellum South, but you also have 2 SCOTUS cases which both hint at a right to carry: Dred Scott v. Sanford & Robertson v. Baldwin.

danb said:
The court did not look carefully at the 1836 MA good cause statute. Halbrook has noted and written on this: the law did not prevent people from carrying. ?More or less It only provided for a bond IF someone made a complaint. So someone had to complain to a magistrate, convince a judge, and the remedy was that the person had to put up "sureties" or a bond in order to carry.

Not terribly surpring the court glossed over the details.

My point was that history and tradition are not as clear cut as some have said. The specific examples can be found in the anti briefs. I have no doubt that all of their examples have reasonable explanations as to why they are not relevant. My point is that there are specific examples that do exist and these examples make history less clear as to whether the right exists outside the home.

Here is a quote from the MA 1836 law (section 16):

If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assualt or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to, fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.

Given that it is one big run on sentence, there is a lot of complexity to digest. The sentence could be interpreted to be a restriction on preventing the carry of a weapon without reasonable cause, along with a punishment (post a surety). MA certainly has this interpretation. I think the part about the "complaint of any person having reasonable cause to, fear and injury, or breach of the peace" explains the meaning. The fine is only imposed if a person unreasonably threatens another. I would not use the words very clear to describe the sentence.

I believe that laws like these are what led SCOTUS in Heller to state that 2A was not an unlimited right.

Occam · Nov 5, 2018

jcutonilli said:
I believe Heller answered that question. The 2A does not define the right, it is a preexisting one. This means that the constitution does not give the answer. The right shall not be infringed, but what exactly is the right? Where do you go to find the answer? The constitution is not the correct place.

But the constitution is what we go on. And the 2A, which (yes) exists to prevent government from infringing on the right to self defense, does indeed provide some guidance on the matter. It uses words like "keep" (possess), and "bear" (like, walk around with), "arms" (a broad term that can get picked at, but we it's safe to say it doesn't apply to nukes and isn't limited to butter knives), and - because the 2A was written to include a mention of WHY it's there (making sure that nobody in government thinks that the inevitable need for a standing military is an excuse to infringe on individual RKB), it also conveniently provides some context: we're talking about militia-grade arms.

We can dance around the fringes of all of that to split hairs (full auto .50 mounted on your car? hmm), but it doesn't seem to leave any wiggle room where a reasonable person could argue that bearing an arm isn't covered by an amendment that explicitly says the right to do so cannot be infringed.

press1280 · Nov 6, 2018

jcutonilli said:
My point was that history and tradition are not as clear cut as some have said. The specific examples can be found in the anti briefs. I have no doubt that all of their examples have reasonable explanations as to why they are not relevant. My point is that there are specific examples that do exist and these examples make history less clear as to whether the right exists outside the home.

Here is a quote from the MA 1836 law (section 16):

Given that it is one big run on sentence, there is a lot of complexity to digest. The sentence could be interpreted to be a restriction on preventing the carry of a weapon without reasonable cause, along with a punishment (post a surety). MA certainly has this interpretation. I think the part about the "complaint of any person having reasonable cause to, fear and injury, or breach of the peace" explains the meaning. The fine is only imposed if a person unreasonably threatens another. I would not use the words very clear to describe the sentence.

I believe that laws like these are what led SCOTUS in Heller to state that 2A was not an unlimited right.

MA courts (albeit many years later) ruled the state's RKBA protections were the collective right, not an individual one. That alone makes the 1836 statute dubious.
And, was that 1836 statute ever put in front of a court that viewed the right through an individual lens? If not, then the mere existence of the law cannot be the source of its constitutionality.
You need to bring up a law, viewed through an individual rights model, that was held constitutional by a court to convince me otherwise.

GlocksAndPatriots · Nov 6, 2018

Occam said:
But the constitution is what we go on. And the 2A, which (yes) exists to prevent government from infringing on the right to self defense, does indeed provide some guidance on the matter. It uses words like "keep" (possess), and "bear" (like, walk around with), "arms" (a broad term that can get picked at, but we it's safe to say it doesn't apply to nukes and isn't limited to butter knives), and - because the 2A was written to include a mention of WHY it's there (making sure that nobody in government thinks that the inevitable need for a standing military is an excuse to infringe on individual RKB), it also conveniently provides some context: we're talking about militia-grade arms.

We can dance around the fringes of all of that to split hairs (full auto .50 mounted on your car? hmm), but it doesn't seem to leave any wiggle room where a reasonable person could argue that bearing an arm isn't covered by an amendment that explicitly says the right to do so cannot be infringed.

But of course killing babies and buggering a dude in the ass is inviolate.

wjackcooper · Nov 6, 2018

Simply put, MA 1836 law (section 16) provides that absent fear on the part of one who is armed, and a complaint of fear by another, in order to “bear arms” a bond may be required.

Justice Alito (referring to Heller) in McDonald said: “this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home.”

Note the use of the word “and.” It seems there is nothing in this language that permits restricting the right to bond holders, or to the ”home.”

Regards
Jack

Bob A · Nov 6, 2018

jcutonilli said:
Here is a quote from the MA 1836 law (section 16):

If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assualt or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to, fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.

Click to expand...

Given that it is one big run on sentence, there is a lot of complexity to digest.

I find it pretty clear:

If a person carries a weapon without G&S (NOT MD-style G&S), if any other person has reasonable fear of the carrier, the carrier needs to be bonded for up to six months. The carrier has the right to appeal the bonding.

A lot better deal than anything Maryland has to offer.

Gould v. O'Leary 1st Circuit(Mass. CCW challenge)

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