Study Finds Shall Issue States have 9% increase in homicides

Wjackcooper wrote:

Put simply, Heller says that ratification of the 2nd Amd. (an enumerated right) settled the “public safety” v. “keep and bear” interest - balancing question in favor of keep & bear;* although longstanding prohibitions were not to be put in “doubt.”**

jcutonilli wrote:
Heller does not use the term "public safety."

Sorry, I wrongfully assumed it would be understood that your argument was referenced, and refuted.

Regards
Jack

The Constitution is not statutory law because it was not crafted by a legislative body. It was crafted by a constitutional convention of states. It was ultimately ordained and established by the people. This is why it is constitutional law and not statutory law.

Laws that are passed under a common law system don't always provide much detail because the detail is filled in by the common law.

United States v Texas said:

Just as longstanding is the principle that "tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952); Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. Astoria, 501 U.S. at 108. In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); Milwaukee v. Illinois, 451 U. S. 304, 315 (1981).

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This is likely why the alien and sedition acts were written the way they were. They intended the details to be filled in by the common law. One of the reasons why we rely on statutory law today is due to a court case that occurred after those acts were written. This case determined that any new federal crimes has to be statutory due to the fact that the constitution prohibited ex post facto laws.

Scalia used more than dictionaries to justify the opinion in Heller.

I have already pointed out many holes in the 2A cases to date.

One general one is how you dispute the data. If you use conflicting data, the court interprets this as political process and defers to the legislature. That guarantees a loss because the legislature created the infringing law in the first place. I am not sure why they do not dispute the other sides data directly and point out all the flaws in their reasoning. It is really not hard. Typically they rely on correlations, but are unable to demonstrate that these correlations are actually causation. The study in this thread is an example of the type of study they use. By not pointing out the flaws you essentially concede that there is not really anything wrong with their data or reasoning. The lack of flaws allows the court to determine it is a political process and not a judicial one.

By arguing that the aggregate of individual self defense is really an aspect of public safety opens up additional arguments. By defining it as purely an individual right, that is mandated by the Constitution, you are relying on an authoritarian argument that many left leaning people don't really accept (See https://en.wikipedia.org/wiki/The_Righteous_Mind). By focusing on public safety aspects you appeal to a protecting others aspect that the left tends to value. This public safety aspect is an aspect that the police cannot provide, a vital protecting aspect that cannot be replicated.

"LCM" and "AWB" cases don't have much data to demonstrate they are needed, which turns the argument into another authoritarian argument. By arguing the public safety aspect, you are putting yourself onto the same footing as the government. They almost always exempt themselves from restrictions. We are then using arms that the government feels is appropriate to use for public safety. Its another protecting argument.

While the courts always has the option to pick whatever they feel is persuasive, higher courts generally step in when they deviate too much from an established norm. While intermediate scrutiny is not exactly what was specified in Heller, there is not much of a deviation from many of the other enumerated right norms. My point is that you need to force the court to either comply with the norms and strike down infringing laws or risk being overturned by a higher court because they deviated too much from established norms.

wjackcooper said:

Wjackcooper wrote:

Put simply, Heller says that ratification of the 2nd Amd. (an enumerated right) settled the “public safety” v. “keep and bear” interest - balancing question in favor of keep & bear;* although longstanding prohibitions were not to be put in “doubt.”**

jcutonilli wrote:
Heller does not use the term "public safety."

Sorry, I wrongfully assumed it would be understood that your argument was referenced, and refuted.

Regards
Jack

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Your statement literally says "Heller says" and makes no mention of my argument. Heller does talk about public safety in a number of places, which is consistent with the beginning part of the sentence. The problem is that it does not literally say "public safety".

You also have not refuted my argument. While Heller explicitly rejects Breyer's novel interest balancing approach, it does not explicitly reject the traditional scrutiny approaches it has accepted with other enumerated rights. It explicitly states that those approaches would fail.

jcutonilli said:

While Heller explicitly rejects Breyer's novel interest balancing approach, it does not explicitly reject the traditional scrutiny approaches it has accepted with other enumerated rights. It explicitly states that those approaches would fail.

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I find your statement here confusing. Here's my understanding of it:

1. Heller explicitly rejects Breyer's "free standing" interest balancing approach
2. Heller does not explicitly reject the traditional scrutiny approaches
3. Heller explicitly states that the traditional scrutiny approaches would fail

Isn't the statement, in a Supreme Court decision, that the traditional scrutiny approaches "would fail" the same as rejecting those approaches, at least for 2nd Amendment cases? If not, then in what way is it not a rejection?

kcbrown said:

I find your statement here confusing. Here's my understanding of it:

1. Heller explicitly rejects Breyer's "free standing" interest balancing approach
2. Heller does not explicitly reject the traditional scrutiny approaches
3. Heller explicitly states that the traditional scrutiny approaches would fail

Isn't the statement, in a Supreme Court decision, that the traditional scrutiny approaches "would fail" the same as rejecting those approaches, at least for 2nd Amendment cases? If not, then in what way is it not a rejection?

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No, stating that the traditional scrutiny approaches "would fail" is not the same as rejecting those approaches. They are stating that the law would fail intermediate and strict scrutiny. In other words, the law is infringing the right using those approaches. In footnote 27, they state "Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. " In the same footnote they acknowledge that rational basis would not be appropriate for enumerated rights like the second amendment.

Many of the lower courts have chosen intermediate scrutiny and found that the laws passed intermediate scrutiny. This means that the court found that the law is not infringing on the right.

Pass means not infringing the right
Fail means infringing the right

Seems self-evident to me, that the court rejected “interest balancing” and that the balancing being rejected is “public safety” v. “keep and bear.”

“**“Although we do not undertake an exhaustive historical analysis today . . . .”

It also seems clear that for tomorrow the proper approach is “historical analysis,” not “scrutiny,” nor “interest balancing.”

This is not to say that Progressive Judges and commentators will not continue to ignore the obvious and focus on the obscure.

Regards
Jack

wjackcooper said:

Seems self-evident to me, that the court rejected “interest balancing” and that the balancing being rejected is “public safety” v. “keep and bear.”

“**“Although we do not undertake an exhaustive historical analysis today . . . .”

It also seems clear that for tomorrow the proper approach is “historical analysis,” not “scrutiny,” nor “interest balancing.”

This is not to say that Progressive Judges and commentators will not continue to ignore the obvious and focus on the obscure.

Regards
Jack

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You continue to quote things and get the quotes wrong. The quote is not "interest balancing", it is "interest-balancing". If you can't read the details correctly, I would question how well you are actually understanding what the court has said.

They have certainly rejected Breyer's "interest-balancing" approach. While they chose a text, history, and tradition approach for Heller, they did not reject intermediate or strict scrutiny. They have yet to correct any lower court that has used intermediate scrutiny for their analysis.

jcutonilli said:

No, stating that the traditional scrutiny approaches "would fail" is not the same as rejecting those approaches. They are stating that the law would fail intermediate and strict scrutiny. In other words, the law is infringing the right using those approaches.

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Ah, okay. I thought you meant that the approaches would fail, because that's the wording you used. It's not, that I can find, quite the wording the Court used. Here are the passages I found from the decision that say what you apparently meant:

District of Columbia v. Heller said:

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to `keep' and use for protection of one's home and family," 478 F.3d, at 400, would fail constitutional muster.

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and

District of Columbia v. Heller said:

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.

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It's interesting that the Court asserts this, but the Court does absolutely nothing to back their statements here. They're bald assertions, and one is left to wonder how the prohibition would fail those methods of scrutiny (especially "intermediate").


Now, that said, the Court also said "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon."

And, of course, that raises the very real question: in what way are the methods of scrutiny not methods which courts use to "decide on a case-by-case basis whether the right is really worth insisting upon"? After all, the outcome of their use varies on a case-by-case basis, so the issue clearly can't be with the "case-by-case" part of their statement. Which leaves "whether the right is really worth insisting upon". What exactly does the Court mean here by that, and how can a court possibly use a scrutiny test and find in favor of the law while simultaneously "insisting upon" the right? Doesn't "insisting upon" the right mean that the right, and not the law, wins when the law is found to intrude upon the scope of the right?

Pass means not infringing the right
Fail means infringing the right

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Then how is it that at least some courts have said that they gate the use of scrutiny on whether or not the right is being infringed? That would mean the court in question, when upholding the law through application of scrutiny:

1. Determines that the right is infringing upon the law (their words)
2. Applies the scrutiny test (the selection of which appears to depend on the nature/degree of infringement)
3. Determines, per your statement above, that the right is not infringing upon the law

The first and third things are directly contradictory, unless the definition the courts in question use differs from yours. But either way, the only definition that is valid is the one the founders intended.

jcutonilli said:

The Constitution is not statutory law because it was not crafted by a legislative body. It was crafted by a constitutional convention of states. It was ultimately ordained and established by the people. This is why it is constitutional law and not statutory law.

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That's true. But is it closer to statutory law or to common law in terms of how it was passed? I would argue it's closer (much closer) to statuory law:

1. The Constitutional laws were crafted by people who were delegated the authority to do so by their respective states, having generally been elected by the legislature of their state. Hence, an elected body drafted the laws.
2. The resulting draft was then submitted to the then-operative Congress of the Confederation, a legislative body, for approval
3. After approval, the draft was sent to each of the state legislatures for submission to their respective conventions
4. The state conventions, composed of delegates elected by the people of the state (hence, similar to a legislative branch but with a singular purpose), approved or disapproved the draft by vote of the elected delegates.

Put another way, very much as with normal legislation, the Constitution was drafted by elected (indirectly in this case -- elected by the elected members of a legislature) representatives and ratified by way of directly elected representatives.


This is in contrast with common law, which is judicial law, i.e. law crafted solely by the judiciary for use by the judiciary in deciding later cases.

Laws that are passed under a common law system don't always provide much detail because the detail is filled in by the common law.

This is likely why the alien and sedition acts were written the way they were. They intended the details to be filled in by the common law. One of the reasons why we rely on statutory law today is due to a court case that occurred after those acts were written. This case determined that any new federal crimes has to be statutory due to the fact that the constitution prohibited ex post facto laws.

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That's really quite fascinating. I had no idea that was how statutory law evolved as it did. Do you happen to know the case that made that decision? I'd love to read it.

Scalia used more than dictionaries to justify the opinion in Heller.

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Yes, obviously. But he did rely on dictionaries as primary sources for the meanings of words used during the period.


I'll respond to the bit about holes in 2A cases, and how we can argue it better, in a separate message. Seems like it deserves its own set of messages.

kcbrown said:

It's interesting that the Court asserts this, but the Court does absolutely nothing to back their statements here. They're bald assertions, and one is left to wonder how the prohibition would fail those methods of scrutiny (especially "intermediate").

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I am not sure they really thought through that statement. I also don't think the lawyers bringing subsequent cases really thought through why either. All the other lawyers seem to baldly assert that the lower courts are really using rational basis rather than intermediate scrutiny.

Now, that said, the Court also said "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon."

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Given that the sentence before indicates that they "know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.", I suspect they are talking about Breyer's interest balancing approach, which is much more deferential to the circumstances than the strict and intermediate scrutiny. Strict and intermediate scrutiny are used in enumerated rights cases, while Breyer's interest balancing approach would not.

Then how is it that at least some courts have said that they gate the use of scrutiny on whether or not the right is being infringed? That would mean the court in question, when upholding the law through application of scrutiny:

1. Determines that the right is infringing upon the law (their words)
2. Applies the scrutiny test (the selection of which appears to depend on the nature/degree of infringement)
3. Determines, per your statement above, that the right is not infringing upon the law

The first and third things are directly contradictory, unless the definition the courts in question use differs from yours. But either way, the only definition that is valid is the one the founders intended.

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I think you are getting lost in the weeds. The first item is a scoping question. It is trying to understand whether there might be any overlap between the right and the law. If there is not any overlap, then there is no need to determine if any infringement occurs because no infringement is possible. If there might be overlap, then the court looks at the details to determine if there really is infringement. The details would reveal whether there is really infringement.

kcbrown said:

That's true. But is it closer to statutory law or to common law in terms of how it was passed? I would argue it's closer (much closer) to statuory law:



That's really quite fascinating. I had no idea that was how statutory law evolved as it did. Do you happen to know the case that made that decision? I'd love to read it.

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One way to distinguish law is by how it was created. There can be many different types; Common law, case law, constitutional law, statutory law, regulatory law, state law, federal law, local law. They can overlap depending on circumstances.

See https://en.wikipedia.org/wiki/United_States_v._Hudson_and_Goodwin for more information on why the court felt new common law violated the constitution.

jcutonilli said:

I am not sure they really thought through that statement.

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That's always possible, but wouldn't that be unusual, especially with respect to such a far-reaching decision as this one?

I also don't think the lawyers bringing subsequent cases really thought through why either. All the other lawyers seem to baldly assert that the lower courts are really using rational basis rather than intermediate scrutiny.

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I think the reason they assert that the courts are really using rational basis is that they're implicitly asking "under what circumstances here would the court not uphold the law, presuming it's rational?" and are basically coming up empty.

Are courts duty-bound to read amicus briefs? If not, I could easily see how plaintiffs might presume that an argument that they really should have raised themselves was instead covered by an amicus brief, only to have the court decide the issue as if the argument in question wasn't raised at all (due to the court not reading the amicus brief in question).

Given that the sentence before indicates that they "know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.", I suspect they are talking about Breyer's interest balancing approach, which is much more deferential to the circumstances than the strict and intermediate scrutiny. Strict and intermediate scrutiny are used in enumerated rights cases, while Breyer's interest balancing approach would not.

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Well, yes, that much is clear, but the Court here could have simply said that "Breyer's freestanding interest balancing test is off the table -- scrutiny and the other methods we already employ are perfectly good for ascertaining whether or not the 2nd Amendment has been infringed" and left it at that. That would have been clear and unequivocal. But the Court didn't. Instead, it spoke more broadly, saying that "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.". And that leads directly to the questions I asked which amount to: how is it that the traditional methods of scrutiny don't qualify while Breyer's does?

I think you are getting lost in the weeds. The first item is a scoping question. It is trying to understand whether there might be any overlap between the right and the law. If there is not any overlap, then there is no need to determine if any infringement occurs because no infringement is possible.

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Right. Except that infringement as understood by the founding generation, as per the definition of the term, requires only that the law restrict that which is within the scope of the right. And that's exactly what the first test is about.

So in a way, you seem to be agreeing with me here.

If there might be overlap, then the court looks at the details to determine if there really is infringement. The details would reveal whether there is really infringement.

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I suppose, in the most nebulous manner, one could argue that this is what scrutiny does. But it doesn't really do that in any meaningful way. Once the first test is passed, the court, via scrutiny, doesn't look at the right at all -- it focuses solely upon the law and its characteristics with respect to the government's interest. But because that process is completely divorced from the characteristics of the right in question, it cannot answer the question of infringement. And that's so because infringement is relative to the right, not the government interest.

kcbrown said:

That's always possible, but wouldn't that be unusual, especially with respect to such a far-reaching decision as this one?

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Given that "this case represent this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". It is easy to look back and see why this is a missed opportunity, it is much harder to have foresight that it might be needed given how the court structured its opinion.

I think the reason they assert that the courts are really using rational basis is that they're implicitly asking "under what circumstances here would the court not uphold the law, presuming it's rational?" and are basically coming up empty.

Are courts duty-bound to read amicus briefs? If not, I could easily see how plaintiffs might presume that an argument that they really should have raised themselves was instead covered by an amicus brief, only to have the court decide the issue as if the argument in question wasn't raised at all (due to the court not reading the amicus brief in question).

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The court does not typically answer hypothetical questions. In order for an appellate court to overturn a lower court you need to point out the deficiencies and convince the court of a better argument. Without any basis how is the court supposed to support a different argument?

I don't know if they are duty bound, but I suspect every amicus brief is read by a judges clerk. Whether a judge reads it will depend on what is added to the argument. I suspect many are read just by the clerk and forgotten about. Some will be used by the judge to support part of the argument. There also are a few cases where the amicus brief forms the basis for the opinion, but that tends to be rare.

Well, yes, that much is clear, but the Court here could have simply said that "Breyer's freestanding interest balancing test is off the table" and left it at that. It didn't. Instead, it spoke more broadly, saying that "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.". And that leads directly to the questions I asked: how is it that the methods of scrutiny don't qualify while Breyer's does?

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They could have written a really short opinion and said DC's law infringes the 2A. Judges and justices like to explain themselves. The whole paragraph compares and contrasts Breyer's interest balancing approach to those used for other enumerated rights ie strict and intermediate scrutiny.

Right. Except that infringement as understood by the founding generation, as per the definition of the term, requires only that the law restrict that which is within the scope of the law. And that's exactly what the first test is about.

So in a way, you seem to be agreeing with me here.

I suppose, in the most nebulous manner, one could argue that this is what scrutiny does. But it doesn't really do that in any meaningful way. Once the first test is passed, the court, via scrutiny, doesn't look at the right at all -- it focuses solely upon the law and its characteristics with respect to the government's interest. But because that process is completely divorced from the characteristics of the right in question, it cannot answer the question of infringement. And that's so because infringement is relative to the right, not the government interest.

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I completely disagree with you.

The first test is a scoping test. If we assume MD defines the actual boundaries of a right, then the first test is like drawing a bounding box around MD. It is easy to figure out that you are not in MD if you are outside the box. The problem is that there are portions of 4 states (and DC) inside the box so you can't claim you are in MD if you are inside the box. Additional analysis would be necessary to figure out if you are inside or outside of MD for a point inside the bounding box. The third step is the additional analysis.

The second part of the test is to select the appropriate level of scrutiny. This involves looking at the right and determining how the law impacts the right. If the right is not enumerated the court will pick rational basis, otherwise strict or intermediate scrutiny is chosen. The choice between intermediate and strict depends on what part of the right is impacted. Political speech might get strict scrutiny while commercial speech might get intermediate scrutiny.

The third part then applies the appropriate level of scrutiny to the law. Strict scrutiny requires narrow tailoring so they cannot infringe any more than is necessary to obtain the compelling interest. In most cases the government interest is not the same as right. The right does not affect the results much.

The way most 2A cases are argued, the interest and the right appear to be different. An individual right to self defense is not the same thing as public safety, but are they really different? What happens if the right and the interest overlap.

When you aggregate individual safety you get a component of public safety and when you better understand the government's interest does not protect individuals you suddenly find that the law is no longer related to the interest the government is claiming and actually negatively affects it.