Justice Alito & the 2nd Amendment

The #1 community for Gun Owners of the Northeast

Member Benefits:

  • No ad networks!
  • Discuss all aspects of firearm ownership
  • Discuss anti-gun legislation
  • Buy, sell, and trade in the classified section
  • Chat with Local gun shops, ranges, trainers & other businesses
  • Discover free outdoor shooting areas
  • View up to date on firearm-related events
  • Share photos & video with other members
  • ...and so much more!
  • Fedora

    Active Member
    Dec 16, 2018
    125
    SNIP Earlier this year, Justice Alito dissented from the Supreme Court’s per curiam decision dismissing New York State Rifle & Pistol Association v. City of New York as moot. His dissent in NYSRPA, his opinions in McDonald v. City of Chicago and Caetano v. Massachusetts (which I’ve written about here), and other cases throughout the years give us some insight into how he views Second Amendment cases. They might provide some clues about the types of cases in which he’s likely to vote to grant cert or vote for an expansive interpretation of the right to keep and bear arms.

    LINK https://firearmslaw.duke.edu/2020/06/justice-alitos-second-amendment/
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    "He readily upholds convictions for federal firearm crimes, and—perhaps because of his background as a prosecutor—seems inclined to take law enforcement concerns seriously."

    Alito is extremely law- and- order oriented. Anyone who comes before the court as a criminal defendant has an uphill battle to win his vote on any topic. But for conservative- favored rights, he's a reliable vote every time.
     

    jpk1md

    Ultimate Member
    Jan 13, 2007
    11,313
    I hate to say this.....but getting Trump re-elected and maintaining/expanding control of the US Senate are about the only things that matter federally speaking for 2020......

    The Senate is a cesspool with all sorts of squishy GOP progressive problems but at LEAST one seat is going to come up for grabs immanently.......and with Roberts doing his best impersonation of Souter.......well......

    We all have limited resources but this is the year to give Trump money and one/two Senate candidates in competitive states that can defeat an incumbent donk.....
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    An interesting read. Seems to suggest he may be OK with the two step test as a matter of law but not OK with how it's being applied. Could this be the reason we can't get cert?

    However this was written right before all the cases were denied cert and the author thought he would be inclined to grant a may-issue case.
    So far though he hasn't really written anything outside of possession cases.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    An interesting read. Seems to suggest he may be OK with the two step test as a matter of law but not OK with how it's being applied. Could this be the reason we can't get cert?

    However this was written right before all the cases were denied cert and the author thought he would be inclined to grant a may-issue case.
    So far though he hasn't really written anything outside of possession cases.

    The two step test is really just applying intermediate or strict scrutiny as appropriate. I don't think any of the justices have a real problem with scrutiny as it is used extensively in many other cases. In many cases even the plaintiffs agree that intermediate scrutiny is appropriate. The real problem has always been how they are applied. Nobody wants to provide a real explanation as to why intermediate scrutiny is being misapplied. Heller provided no explanation as to how they applied intermediate scrutiny in that case.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The two step test is really just applying intermediate or strict scrutiny as appropriate. I don't think any of the justices have a real problem with scrutiny as it is used extensively in many other cases. In many cases even the plaintiffs agree that intermediate scrutiny is appropriate. The real problem has always been how they are applied. Nobody wants to provide a real explanation as to why intermediate scrutiny is being misapplied. Heller provided no explanation as to how they applied intermediate scrutiny in that case.

    I haven't seen any of the current justices voice outright support for this. Thomas & Kavanaugh have written clearly for text, history and tradition. Even Roberts seems to be inclined to this from Heller orals: CHIEF JUSTICE ROBERTS: Well, these various 6 phrases under the different standards that are proposed, 7 "compelling interest," "significant interest," "narrowly 8 tailored," none of them appear in the Constitution; and 9 I wonder why in this case we have to articulate an
    all-encompassing standard. Isn't it enough to determine 11 the scope of the existing right that the amendment 12 refers to, look at the various regulations that were 13 available at the time, including you can't take the gun 14 to the marketplace and all that, and determine how
    these -- how this restriction and the scope of this 16 right looks in relation to those? 17 I'm not sure why we have to articulate some 18 very intricate standard. I mean, these standards that 19 apply in the First Amendment just kind of developed over
    the years as sort of baggage that the First Amendment 21 picked up. But I don't know why when we are starting 22 afresh, we would try to articulate a whole standard that 23 would apply in every case?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I haven't seen any of the current justices voice outright support for this. Thomas & Kavanaugh have written clearly for text, history and tradition. Even Roberts seems to be inclined to this from Heller orals: CHIEF JUSTICE ROBERTS: Well, these various 6 phrases under the different standards that are proposed, 7 "compelling interest," "significant interest," "narrowly 8 tailored," none of them appear in the Constitution; and 9 I wonder why in this case we have to articulate an
    all-encompassing standard. Isn't it enough to determine 11 the scope of the existing right that the amendment 12 refers to, look at the various regulations that were 13 available at the time, including you can't take the gun 14 to the marketplace and all that, and determine how
    these -- how this restriction and the scope of this 16 right looks in relation to those? 17 I'm not sure why we have to articulate some 18 very intricate standard. I mean, these standards that 19 apply in the First Amendment just kind of developed over
    the years as sort of baggage that the First Amendment 21 picked up. But I don't know why when we are starting 22 afresh, we would try to articulate a whole standard that 23 would apply in every case?

    Just because Thomas and Kavanaugh are for text, history, and tradition does not mean they are opposed to intermediate scrutiny.

    So you are saying that Roberts (the Justice everyone is say is the reason the 10 cases were rejected) does not want intermediate scrutiny, yet intermediate scrutiny is the reason each of the 10 cases was found Constitutional. If he is so opposed to intermediate scrutiny, why is everyone saying he is the reason the 10 cases were rejected? Wouldn't he be the first to grant cert so that he could get rid of intermediate scrutiny if he were really opposed to it?
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I’m only pointing out his own words on the subject. I don’t know if he’s just not inclined to write dissents or what. He’s definitely a big unknown right now and that may be scaring both sides. Maybe he’s now an intermediate scrutiny champion, maybe not. Who knows?
    As to what others are saying I can’t speak for them.
     

    CrueChief

    Cocker Dad/RIP Bella
    Apr 3, 2009
    2,999
    Napolis-ish
    People are not scared of Roberts, they are cynical of him. He saved Obama care twice. Each time he took what the Obama lawyers said it wasn't such as they were adamant that the mandate wasn't a tax. But he rewrote the "law" and said it was, the very thing even the Obama people said it wasn't just to save it. So Roberts is a problem when he rejects the Gov't position but gives them what they want anyway. And that is the sort of thing that makes many feel like they will never take a carry case. As a lot of people are saying they need the correct argument, but there are cases where the question was answered even if they rewrote the question in the opinion. So we could have gotten our answer even if the words in the question weren't exactly right. I don't think any thinking person can say the question of "is there a right to public carry " needs an answer. Even SCOTUS they know it needs an answer, all 9 of them so with that in mind excuses for why the cases are being rejected can be pondered but the truth is no one in power really wants an answer that would mean the battle is over and so is the money train on both sides.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    People are not scared of Roberts, they are cynical of him. He saved Obama care twice. Each time he took what the Obama lawyers said it wasn't such as they were adamant that the mandate wasn't a tax. But he rewrote the "law" and said it was, the very thing even the Obama people said it wasn't just to save it. So Roberts is a problem when he rejects the Gov't position but gives them what they want anyway. And that is the sort of thing that makes many feel like they will never take a carry case. As a lot of people are saying they need the correct argument, but there are cases where the question was answered even if they rewrote the question in the opinion. So we could have gotten our answer even if the words in the question weren't exactly right. I don't think any thinking person can say the question of "is there a right to public carry " needs an answer. Even SCOTUS they know it needs an answer, all 9 of them so with that in mind excuses for why the cases are being rejected can be pondered but the truth is no one in power really wants an answer that would mean the battle is over and so is the money train on both sides.

    I think Roberts is a little exaggerated. He certainly has ruled the other way in certain cases, but the majority of the time he tends to be pretty conservative. If he were not, he probably would have voted the opposite way in Abramski. Kennedy voted against us in that case.

    It is not just about answering a question, it is about how you answer the question. What people are struggling with is figuring out how to appropriately answer the question. The plaintiffs are not helping SCOTUS out by explaining how they need to answer the question. They simply claim the law is being misapplied, which is not something SCOTUS typically grants cert to.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I don’t have the cases in hand but I recall seeing plaintiffs pointing out that SCOTUS rules one way (with intermediate scrutiny) and the burden is put on the government but when it comes to guns the burden is always on the plaintiff.
    As noted before in Drake, the government didn’t really have to defend its position at all.
     

    CrueChief

    Cocker Dad/RIP Bella
    Apr 3, 2009
    2,999
    Napolis-ish
    Ok I guess I have watched too much tv and fall into some sort of layman trap. I thought you could take a case to court and say public carry IS part of the right and it was up to the unelected Bureaucrats to decide. And in my layman mind I don't understand how these Ivy League educated people need the "question" worded just right. I would think that they get the jist of want is being asked of them. It really is as simple as "Is public carry part of the right and can the State limit it to a need?"

    And as far figuring out how to answer the question they are Ivy league educated after all. I just don't understand the mechanics of it I guess and since they don't discuss things in the off season there really is no way for us layman to understand. But then I go back to why doesn't Thomas just call Gura or Clement( off the record of course) and tell them what it would take since he is so eager and they are favorites of the court?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I don’t have the cases in hand but I recall seeing plaintiffs pointing out that SCOTUS rules one way (with intermediate scrutiny) and the burden is put on the government but when it comes to guns the burden is always on the plaintiff.
    As noted before in Drake, the government didn’t really have to defend its position at all.

    You are correct that the government has the burden, but it is not that heavy of a burden. Once they provide some reasoning, it is up to the plaintiff to challenge that reasoning. The government in Drake didn't really have to defend its position because it is long established that the government has a role to play in providing public safety and history shows that restrictions can be implemented that address public safety. The plaintiffs can either agree or disagree with this position. They typically don't challenge it and wind up loosing because of it.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Ok I guess I have watched too much tv and fall into some sort of layman trap. I thought you could take a case to court and say public carry IS part of the right and it was up to the unelected Bureaucrats to decide. And in my layman mind I don't understand how these Ivy League educated people need the "question" worded just right. I would think that they get the jist of want is being asked of them. It really is as simple as "Is public carry part of the right and can the State limit it to a need?"

    And as far figuring out how to answer the question they are Ivy league educated after all. I just don't understand the mechanics of it I guess and since they don't discuss things in the off season there really is no way for us layman to understand. But then I go back to why doesn't Thomas just call Gura or Clement( off the record of course) and tell them what it would take since he is so eager and they are favorites of the court?

    The issue is not the question "Is public carry part of the right and can the State limit it to a need?". History demonstrates that there are certain instances where they can.

    The real issue is how does the court determine if the the state can limit the right for a specific circumstance. The problem is that Heller never specified how the court is supposed to determine if the state can limit the right in specific circumstances. The lower courts adopted an approach that they use for other amendments such as the 1A.

    The problem is that the lower courts don't seem to be coming up with the correct answer. How you raise the issue matters because SCOTUS rarely corrects issues that are simply the misapplication of a properly stated rule of law. If all you do is state that they are coming up with the wrong answer without specifying what was part of the law was not properly stated, they will likely reject the case because it does not appear to be a systematic issue.

    I suspect they do realize it is a systematic issue, but the question that still remains is how do we figure out how to determine when the state can limit the right. None of the cases to date have provided that answer. I think they are waiting for a case that will allow them to figure it out or at least figure part of the issue out. Given the lack of agreement on dissents, I am not sure there is any real agreement among the Justices about how to figure this out
     

    CrueChief

    Cocker Dad/RIP Bella
    Apr 3, 2009
    2,999
    Napolis-ish
    The issue is not the question "Is public carry part of the right and can the State limit it to a need?". History demonstrates that there are certain instances where they can.

    The real issue is how does the court determine if the the state can limit the right for a specific circumstance. The problem is that Heller never specified how the court is supposed to determine if the state can limit the right in specific circumstances. The lower courts adopted an approach that they use for other amendments such as the 1A.

    The problem is that the lower courts don't seem to be coming up with the correct answer. How you raise the issue matters because SCOTUS rarely corrects issues that are simply the misapplication of a properly stated rule of law. If all you do is state that they are coming up with the wrong answer without specifying what was part of the law was not properly stated, they will likely reject the case because it does not appear to be a systematic issue.

    I suspect they do realize it is a systematic issue, but the question that still remains is how do we figure out how to determine when the state can limit the right. None of the cases to date have provided that answer. I think they are waiting for a case that will allow them to figure it out or at least figure part of the issue out. Given the lack of agreement on dissents, I am not sure there is any real agreement among the Justices about how to figure this out

    Ok so maybe it would be better to take a smaller bite, right? what do you suggest as a first step argument to get the courts attention and maybe 5 Justices to agree? Because if they can't agree on what they disagree on so to speak maybe some smaller portion could us moving in the right direction. Because if you are right on why they haven't taken any of these cases and are all basically asking the same question then more of the same is never going to work.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Ok so maybe it would be better to take a smaller bite, right? what do you suggest as a first step argument to get the courts attention and maybe 5 Justices to agree? Because if they can't agree on what they disagree on so to speak maybe some smaller portion could us moving in the right direction. Because if you are right on why they haven't taken any of these cases and are all basically asking the same question then more of the same is never going to work.

    It is unclear exactly what it will take. I do agree that more of the same is unlikely to work. I see attacking the government interest as the next logical step. Maybe there are other ways also.
     

    Users who are viewing this thread

    Latest posts

    Forum statistics

    Threads
    274,915
    Messages
    7,258,418
    Members
    33,348
    Latest member
    Eric_Hehl

    Latest threads

    Top Bottom